INTRODUCTION 


TO   THE    STUDY   OF 


INTERNATIONAL    LAW, 


DESIGNED 


AS  AN  AID  IN  TEACHING,  AND  IN  HISTORICAL  STUDIES. 


BY 

THEODORE    D.     WOOLSEY, 

PRESIDENT    OF    YALE    COLLEGE. 


SECOND     EDITION,     REVISED     AND     ENLARGED. 


NEW    YORK: 
CHARLES    SCRIBNER,    124    GRAND    STREET 

1864. 


f* 


Entered,  according  to  Act  of  Congress,  in  the  year  1S64,  by 

CHARLES   SCRIBXER, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Southern  District  of 

New  York. 


JOHN  F.  TROW, 

PRINTER,  STEHEOTYPER,  A^IJ   E~ECTBOT\PE!t, 
50  Greene  street,  New  Yt  rk. 


TO 

FRANCIS      LIEBER, 

AS   A   TOKEN   OF   RESPECT   FOR   HIS   SERVICES    IN   THE   FIELD 

OF  POLITICAL   SCIENCE,   THIS   WORK   IS   INSCRIBED 

BY  HIS   FRIEND 

THE  AUTHOR. 


;•; 
&  *j  r^t  *jt  o 


PKEFACE    TO    THE    SECOND  EDITION. 


THIS  brief  exposition  of  the  law  of  nations  was  writ 
ten  for  the  purpose  of  supplying  a  practical  want,  which 
the  author  felt  for  a  number  of  years,  while  engaged  in 
teaching  that  science.  The  want  was  that  of  a  com 
pendious  treatise,  intended  not  for  lawyers,  nor  for 
those  who  have  the  profession  of  law  in  view,  but  for 
young  men,  who  are  cultivating  themselves  by  the 
study  of  historical  and  political  science.  The  plan  of 
the  work  shaped  itself  through  its  relations  to  those  for 
whose  use  it  was  designed.  While  the  state  of  the  law 
of  nations  as  it  is  was  regarded  as  the  chief  point  to  be 
secured,  it  seemed  almost  equally  important  to  compare 
the  actual  law  with  the  standard  of  justice,  and,  by  ex 
hibiting  the  progress  of  the  science  in  a  historical  way, 
to  bring  it  into  connection  with  the  advances  of  human 
ity  and  of  civilization.  The  success  of  the  work,  of 
which  the  first  edition,  issued  early  in  the  summer  of 
1860,  has  been  for  some  time  exhausted,  shows  that  a 
want  has  been  met  by  it,  if  not  satisfied. 


6  PREFACE. 

In  this  second  edition  the  author  has  done  what  he 
could,  amid  many  labors,  to  purge  the  work  from  errors, 
to  improve  the  arrangement,  and  to  supply  what  was 
deficient.  Meanwhile  a  war,  as  just  and  necessary  as  it  is 
vast  in  its  proportions,  has  burst  upon  the  country,  and 
has  given  rise  to  new  questions  touching  neutral  and 
belligerent  rights,  in  discussing  which,  this  nation,  so 
tenacious,  formerly,  of  the  neutral  ground,  has  seemed 
inclined  to  go  over  to  the  other  position.  Naturally, 
some  of  these  points  are  looked  at  in  the  present  edition 
of  this  work,  with  the  feeling,  it  is  hoped,  that  the  law 
of  nations  must  be  represented  as  it  is,  and  that  no 
temporary  bias  can  be  permitted  to  exert  any  influence 
in  the  statement  of  any  doctrine.  May  the  war  end 
speedily, — if  possible,  before  these  words  shall  appear 
in  print, — but  not  without  the  destruction  of  slavery, 
the  union  of  the  States  on  a  basis  of  justice,  and  the 
observance  of  the  rules  of  international  law  in  the  in 
tercourse  between  all  other  nations  and  our  republic ! 

YALE  COLLEGE,  Jan.  1,  1864. 


CONTENTS. 


INTRODUCTORY    CHAPTER. 

DEFINITION,    GROWTH,    JURAL   AND   MORAL    GROUNDS,  SOURCES   OP   INTERNATIONAL   LAW. 

§  1,  2.  A  law  of  action,  for  states  as  for  individuals,  founded  injustice. 

§  3,  4.  International  law,  what,  in  a  wider  sense  ? 

§  5.       Actual  international  law,  what  ? 

§  6.      Its  genesis  and  voluntary  nature.     It  is  of  later  growth  than  state  law. 

§  7.       Why  it  arose  in  Christian  states. 

§  8.       Quite  imperfect  elsewhere.     Illustrations  of  this  from  Greece  and  Rome. 

Not  true  that  these  nations  had  no  international  law.     Its  leading  features 

in  mediasval  Europe. 

§  9.      Names  given  to  this  science.    Not  the  same  as  jus  geiriium. 
§10.     Differs  from  jus  naturale. 
§  11.     Definition  of  jus  naturale  by  Grotius. 
§  12.     Puffendorf  confounds  jus  naturale  and  international  law. 
§  13.     A  reference  to  the  standard  of  justice  necessary  in  international  law. 
§  14.     It  cannot  be  resolved  into  contract-obligation. 
§  15.     Must  be  looked  at  both  as  a  positive  law,  and  in  its  relations  to  jus  and 

morals.     Its  jural  grounds. 
§  16.     Its  moral  grounds. 

§  17.     Particular  rights  and  obligations  of  nations. 
§  18.     Observations  on  certain  rights.     1.  The  right  of  reputation. 
§  19.     2.  The  right  of  redress. 
§  20a.  3.  Is  there  a  right  of  punishing  other  states  ? 
§  206.  Obligation  of  states  to  aid  justice  outside  of  their  own  bounds. 
§  21.     4.  Is  there  a  right  of  conquest  ? 
§  22.     Moral  relations,  or  duties  and  moral  claims  of  states. 
§  23.     Observations  on  certain  duties.     1.  Humanity. 
§  24.     2.  Comity. 
§  25.     3.  Intercourse. 
§  26,  27.  Vattel's,  Wheaton's,  and  other  divisions  of  international  law. 


8  CONTENTS. 

§  28.  Custom  and  free  assent  alike  sources  of  international  law.     Thus  moral 

claims  become  rights. 

§  29.  International  law  adopted  by  municipal. 

§  30.  Aids  for  ascertaining  what  international  law  is. 

§  31.  Stages  in  the  development  of  international  law. 

§  32.  Minor  differences  in  the  views  of  different  nations  concerning  it. 

§  33.  Uncertainty  and  want  of  authority  in  international  law. 

§  34.  Importance  of  the  history  of  international  law. 

§  35.  Method  pursued  in  this  work. 


PAET    I. 

THE    ESSENTIAL   POWERS   OF   STATES,   AND  THEIR   RIGHTS  AND   OBLL 
GATIONS,  ESPECIALLY  IN  A  STATE  OF  PEACE. 


CHAPTER      I. 

RIGHTS   OF    STATES   AS   INDEPENDENT    SOVEREIGNTIES.      RULE    OF  NON-INTER 
FERENCE   AND   ITS   EXCEPTIONS. 

A  state,  what  ?     Pirates  no  state. 

Essential  attributes  of  a  state.      Sovereignty,  independence,   equality,  all 

included  in  sovereignty.     May  be  parted  with  by  confederated,  and  by 

protected  states. 

§  38.     Obligations  not  affected  by  change  of  government. 
§  39.     All  forms  of  government  legitimate  in  the  view  of  international  law. 
§  40.     It  knows  only  governments  de  facto. 
§  41.     Assistance  to  provinces  in  revolt  unlawful,  but  aid  to  another  state  against 

rebellion  lawful. 

§  42.     Non-interference  the  rule,  but  with  exceptions.     Interference  when  justified. 
§  43.     Interference  to  preserve  the  balance  of  power. 
§  44.     Historical  illustrations  of  such  interference. 
§  45.     Interference  to  prevent  revolutions. 
§  46.     Instances  of  such  interference  in  the  French  revolution.     The  holy  alliance. 

Congress  of  Troppau-Laybach.     Congress  of  Verona. 
§  47.     The  Monroe  doctrine. 
§  48.     Eesults  of  an  attempt  to  establish  a  law  of  interference  in  the  internal  affairs 

of  states.. 

§  49.     Interference  in  the  Belgic  revolution  of  1830. 
§  50.     Interference  on  the  score  of  religion  and  humanity. 
§  51.     Equality  of  states.     Their  rank.     Existing  rules  of  rank.     These  distinc 

tions  fading  out. 


CONTENTS. 


CHAPTER      II. 

TERRITORIAL   RIGHTS   OF  STATES  AND  RIGHTS   OF  PROPERTY.     STRICT   RIGHT   RENOUNCED 
IN  THE   USE   OF  NAVIGABLE   WATERS. 

§  52.     Property  of  states  what,  in  international  law  ? 

§  53.     Modes  of  acquiring  territory. 

§  54.     What  is  included  in  territory.     Are  vessels  on  the  sea  territory. 

§  55.  Freedom  of  the  high  seas  and  of  fishery  there.  Fishery  question  between 
Great  Britain  and  the  United  States,  until  its  settlement  by  the  treaty  of 
1854. 

§  56.     Claim  of  exclusive  control  over  certain  waters.     1.  Bays.     2.  Gulfs. 

§  57.  3.  Straits  and  inland  seas.  The  Danish  straits.  The  Black  Sea  and  its  en 
trance. 

§  58.  4.  Rights  over  river  navigation.  Rules  of  Congress  of  Vienna.  The  Rhine. 
The  Scheldt.  The  Danube  by  the  treaty  of  Paris.  The  Mississippi.  The 
St.  Lawrence.  The  La  Plata  system  of  rivers. 


CHAPTER     III. 

RIGHTS    OF   INTERCOURSE.      RELATIONS   OF    FOREIGNERS   WITHIN    A   TERRITORY   OF    THE 

STATE. 

§  59.  Intercourse  of  states,  how  far  a  right.  What  a  state  may  not  do  respecting 
intercourse. 

§  60.     What  a  state  may  do. 

§  61.  Individual  aliens  entitled  to  protection.  Right  of  asylum,  of  innocent  pas 
sage,  of  emigration. 

§  62.     Relations  of  aliens  to  the  laws,  and  their  condition. 

§  63.  Progress  of  comity  and  humanity  towards  aliens  illustrated.  Droit  d'au- 
baine. 

§  64.  Exterritoriality,  its  limits  as  to  sovereigns,  ships  of  war,  armies  in  transit, 
,  vessels  in  French  harbors.  Treatment  of  vessels  driven  into  foreign 
waters  out  of  their  course. 

§  65.     Exemptions  to  foreigners  in  certain  eastern  countries. 

§  66.  Aliens  parting  with  the  character  of  aliens.  Naturalization.  Rules  of  sev 
eral  nations  as  it  respects  naturalization. 

§  67.     Domicile,  what  ? 

§  68.     Conflict  of  laws  as  to  a  particular  person. 

§  69.  Private  international  law,  what  ?  Its  growth.  Its  leading  rules  show  ten 
dency  of  nations  to  similar  principles  of  law. 

§  70.  Its  leading  rules.  1.  As  to  personal  capacity.  Exceptions  on  political, 
moral,  and  religious  grounds. 

§  71.     2.  As  to  rights  of  property. 


10  CONTENTS. 

§  72.  3.  As  to  rights  of  obligation. 

§  73.  4.  As  to  rights  of  succession. 

§  74.  6.  As  to  family  rights. 

§  75.  6.  As  to  forms  of  legal  acts. 

§  76.  Use  of  courts,   how  far  allowed  to   strangers.     Suits  against  foreigners. 

Proofs.     Rogatory  commissions. 

§  77.  Effects  of  foreign  judgments. 

§  78.  Crimes  committed  abroad  may  come  under  two  jurisdictions. 

§  79.  Extradition. 

§  80.  International  copy  and  patent  right. 

§  81.  Appendix.     Case  of  Martin  Koszta. 


CHAPTER     IV. 

THE   FORMS   AND   AGENTS   0?   INTERNATIONAL   INTERCOURSE. 

SECTION  I. — The  Forms  of  Intercourse,  or  International  Courtesy. 

§  82.     General  comity  between  nations. 

§  83.     Respect  for  the  reputation  of  another  state.     The  Hiilsemann  affair. 

§  84.     Treatment  of  foreign  sovereigns,  etc.     Ceremonial  of  Courts.     Diplomatic 

correspondence  of  states. 

§  85.     Ceremonial  of  the  sea.     Forms  of  politeness  there. 
§  86.     Disputes  in  Cent.  XVII.,  concerning  ceremonies  at  sea. 

SECTION  II. — TJie  Agents  in  the  Intercourse  of  Nations;   or  Ambassadors  and 

Consuls. 

§  87.     Persons  appointed  to  manage  the  intercourse  between  nations. 

§  88.     Origin  of  the  privilege  of  ambassadors. 

§  89.     Temporary  and  resident  ambassadors. 

§  90.     Is  there  any  obligation  to  receive  ambassadors  ? 

§  91.     Right  of  sending  ambassadors. 

§  92a.  Privileges  of  ambassadors. 

1.  Their  inviolability. 

2.  Their  exterritoriality,  as  (1.)  immunity  from  criminal,     (2.)  from  civil  ju 
risdiction. 

§  92&.  (8.)  Immunity  of  their  hotel  and  goods — without  right  of  asylum  for  crimi 
nals.     (4.)  Immunity  from  imposts  to  a  certain  extent. 

§  92c.  (5.)  Freedom  of  private  worship. 

§  92d.  (6.)  Privileges  of  ambassador's  family  and  tram. 
(7.)  His  power  over  his  suite. 

8  92e.  Limits  of  his  immunity, — ambassador  engaging  in  trade— rcommitting  great 
crimes. 

§  93.     Relations  of  an  ambassador  to  a  third  power. 


CONTENTS.  11 

94.  Rank  of  ambassadors, — ceremonial, — termination  of  their  mission. 

95.  Consuls.     Origin  of  the  consular  office.     Consuls  of  the  middle  ages. 

96.  Functions  of  consuls.     Their  jurisdiction  out  of  Christendom.     Their  privi 

leges  and  status.     Their  privileges  in  non-Christian  countries.     Who  can 
serve  as  consuls. 

CHAPTER    Y. 

OF   THE   RIGHT   OF   CONTRACT,    OR   OF   TREATIES   BETWEEN   STATES. 

97.  Of  contract  in  general,  especially  between  states.     With  whom  can  states 

make  contracts  ? 

98.  What  treaties  are  lawful  ? 

99.  Treaties  made  by  a  limited  sovereign. 

100.  Treaties  procured  by  fraud  falsehood  or  force,  not  binding. 

101.  Treaties  to  do  an  unlawful  thing,  not  binding. 

102.  Kinds  of  treaties. 

103.  Treaties  of  alliance. 

104.  Treaties  of  confederation. 

105.  Treaties   of  guaranty.     Guaranties   of  treaties.      Origin   of  guaranties   to 

treaties. 

106.  Other  modes  of  confirming  the  faith  of  treaties.     Hostages.     Pledges. 

107.  When  do  treaties  begin  to  be  binding  ? 

108.  Violation  of  treaties. 

109.  Interpretation  of  treaties.     Repugnant  clauses  and  conflicting  treaties. 


PAET    II. 

INTERNATIONAL    LAW    AND    USAGE    IN    A    STATE    OF    WAE. 

CHAPTER    I. 

OF  A   NATION'S   RIGHT    OF   SELF-DEFENCE   AND   REDRESS    OF  INJURIES,  OR   OF  WAR, 
CAPTURE,  AND  TREATIES  OF  PEACE. 

SECTION  I.— Of  War. 

§  110.  Of  war  in  general. 

§111.  War  and  just  war,  what?     Who  is  to  judge  of  its  justice?     Are  nations 

bound  to  resort  to  arbitration  ?     Ought  an  ally  to  judge  ? 
§  112.  Rightfulness  of  war.     For  what  may  war  be  undertaken  ? 
§  113.  Defensive  and  offensive  war. 


12  CONTENTS. 

§  114.  Measures  for  redress  falling  short  of  war.  1.  Embargo.  Hostile  embargo. 
2.  Retorsion.  3.  Reprisals.  Greek  and  Roman,  mediaeval  and  modern 
usage  as  to  reprisals. 

§  115.  Commencement  of  war.  Declaration.  Greek  and  Roman  practice.  Mediae 
val  practice.  Modern.  Reasons  for  the  modern  usage. 

§  116.  What  notice  of  a  state  of  war  ought  to  be  given  ? 

§  117.  Effects  of  war.     Non-intercourse  with  the  enemy.    License  to  trade. 

§  118.  Enemy's  property  within  a  belligerent  country. 

§  119.  Have  all  in  each  hostile  state  a  right  to  wage  war  ? 

§  120.  Treatment  of  enemy's  property  on  land  and  sea  compared. 

§  121.  Forces  employed  in  war,  especially  on  the  sea.     Privateers. 

§  122.  Evils  of  privateering.  Testimony  to  these  evils.  Endeavors  to  stop  it  by 
treaty.  Declaration  of  Paris,  1856.  Attitude  of  the  United  States. 

§  123.  Restrictions  on  privateering  to  prevent  its  evils. 

SECTION  II. — Laws  and  Usages  of  War,  especially  on  Land. 

§  124.  Laws  and  usages  of  war  somewhat  vague,  yet  improving.  Causes  of  this 
amelioration. 

§  125.  Fundamental  rules  of  war. 

§  126.  Retaliation. 

§  127.  Special  rules  (1.)  as  to  weapons  and  ways  of  injuring  an  enemy's  person. 
(2.)  Allowable  weapons  in  war.  (3.)  Breach  of  faith.  Solicitations  to 
crime. 

§  128.  (4.)  Treatment  of  captured  persons,  especially  of  soldiers.  (5.)  Treatment 
of  irregular  troops. 

§  129.  (6.)  Non-combatants  and  their  property.  Usages  of  the  Romans,  of  the  mid 
dle  ages,  etc.,  of  the  thirty  years'  war,  of  the  time  of  Louis  XIV.,  of 
Frederick  the  Great,  and  the  English  in  the  American  war,  of  Napoleon. 

§  130.  Summing  up. 

§  131.  (7.)  Public  property. 

§  132.  (8.)  Sieges  and  storms  of  forts  and  towns. 

§  133.  Laws  of  war  on  the  sea. 

§  134.  Commercia  belli. 

§  135.  Spies. 

SECTION  III. —  Of  Civil  Wars,  Wars  with  Savages,  Piracy,  and  the  Slave-trade. 

§  136.  Civil  wars.     "Wars  with  savages. 
§  137.  Pirates  and  their  treatment. 
§  138.  Is  the  slave-trade  piracy  ? 


SECTION  TV. —  Of  Capture  and  Recapture,  Occupation  and  Recovery  of  Territory. 

|  139.  Capture  in  general,  especially  from  enemies. 
§  140.  Property  in  prizes  how  and  when  begun  ? 


CONTENTS.  13 

5  141.  Complete  title  given  by  a  court. 

5  142.  Ransom  of  captured  vessels.     Hostages  to  secure  ransom. 
j  143.  Recapture.     Rights  of  the  original  owner.     Jus  postliminii. 
5  144.  Rewards  for  capture  and  recapture.     Salvage.     Its  amount. 
\  145.  Effects  of  temporary  conquests. 

SECTION  V. — Of  the  Suspension  and  Close  of  War,  especially  of  Truce  and  Peace. 

\  146.  Intercourse  in  war,  (1.)  for  the  purposes  of  war. 

5  147.  (2.)  Licences  and  safe  conducts. 

\  148.  Truce  or  armistice. 

5  149.  Time  when  a  truce  begins.     End  of  a  truce. 

5  150.  Peace,  what  ?     Of  treaties  of  peace  in  general.     Language  used  in  treaties. 

\  151.  Restrictions  on  the  power  to  make  peace. 

\  152.  Effect  of  treaties  of  peace. 

\  153.  Continued. 

\  154.  Time  when  a  treaty  begins  to  be  binding. 


CHAPTER    II. 

OF  THE   RELATIONS   BETWEEN   BELLIGERENTS  AND   NEUTRALS. 

SECTION  II.— Of  the  Obligations  and  Rights  of  Neutral  States. 

155.  Doctrine  of  neutrality  of  modern  growth.     Neutrals,  who  ?     Gradations  of 

neutrality.     Permanent  neutrality.     Armed  neutrality. 

156.  Obligations  of  neutrals  to  be  impartial. 

157.  To  stand  aloof  from  both  parties. 

158.  To  be  humane  to  both. 

159.  The  neutral  may  admit  into  his  ports  war-vessels  of  the  belligerents. 

160.  What  neutrals  may  not  do.     Cases  doubtful  or  disputed.     (1.)  Transit. 

161.  (2.)  Furnishing  troops  to  belligerents. 

162.  What  may  a  neutral's  subject  do  ? 

163.  Rights  of  neutrals.     Case  of  the  Caroline. 

164.  Continued. 

165.  Municipal  laws  enforcing  neutrality. 

166.  Case  of  the  British  ambassador  in  1856. 

1666.  Relation  of  neutrals  to  the  parties  in  an  internal  war. 

SECTION  II. — Of  the  Rights  and  Liabilities  of  Neutral  Commerce. 

167.  Importance  of  questions  touching  rights  of  neutral  trade. 

168.  Who  are  neutrals,  and  what  is  neutral  property  ? 
169a.  General  principles  as  to  liability  of  goods  to  capture. 

1696.  Nationality  of  goods  and  vessels  as  affecting  their  liability  to  capture. 


14  CONTENTS. 

§  170.  Treatment  of  vessels  conveying  hostile  goods. 

§  171.  Justice  of  the  rules  respecting  neutral  trade  considered. 

§  172.  Former  practice  in  regard  to  neutral  trade. 

§  173.  Historical  illustrations. 

§  174.  Continued. 

§  175.  Declaration  attached  to  the  peace  of  Paris  in  1856. 

§  176.  Opinions  of  publicists. 

§  177.  Neutral  property  in  armed  enemies'  vessels. 

§  178.  Contraband  of  war. 

§  179.  What  goods  are  contraband  in  the  usage  of  nations  ? 

§  180.  Results  as  to  deciding  what  articles  are  contraband.     Occasional  contraband. 

§  181.  Is  it  just  and  sanctioned  by  usage  ?     Opinions  in  respect  to  it. 

§  182.  Preemption.     English  practice  in  cases  of  preemption. 

§  183.  Penalty  for  contraband  at  sea.     Treaty  modifying  the  penalty. 

§  184.  Neutrals  carrying  the  enemy's  despatches.     Case  of  the  Trent. 

§  185.  Trade  closed  in  peace,  but  open  in  war. 

§  186.  Blockade.  What  places  can  be  blockaded  ?  Why  is  a  breach  of  blockade 
unlawful  ?  Validity  of  a  blockade.  Paper  or  cabinet  blockades  un 
lawful. 

§  187.  Evidence  of  a  blockade.  What  is  due  notice  ?  What  is  a  discontinuance 
of  a  blockade  ? 

§  188.  Penalty  for  breach  of  blockade.     Duration  of  liability  to  penalty. 

§  189.  Attempts  to  stretch  the  doctrine  of  blockade.  Prussian  decree.  Berlin 
decree.  First  and  second  orders  in  council.  Milan  decree.  British  or 
ders  in  council  of  1809. 

§  190.  The  right  of  search.  Its  narrow  limits.  Duty  of  submitting  to  it.  Treaties 
often  regulate  the  right 

§  191.  Is  there  a  right  of  convoy  ?     Historical  illustrations. 

§  192.  Its  justice  considered. 

§  193.  Neutrals  under  belligerent  convoy.  • 

§  194.  Search  during  peace  to  execute  revenue  laws. 

§  195.  Search  on  suspicion  of  piracy. 

§  196.  Search  of  foreign  vessels,  suspected  of  being  slavers,  unauthorized. 

§  197.  But  conceded  by  treaties  between  most  of  the  European  states.  Examples 
of  such  treaties. 

§  198.  Obligations  of  the  United  States  in  regard  to  the  slave-trade.  Resolutions 
of  Congress,  Feb.  28,  1823.  Negotiations  in  England,  and  convention  of 
1824,  amended  by  Senate  of  United  States,  then  rejected  by  England. 

§  199.  Treaty  of  Washington  in  1842.     Practice  under  the  treaty. 

§  200.  What  does  the  right  of  search  mean  ?  Doctrine  held  by  the  United  States. 
New  discussion  concerning  the  right  in  1858,  1859.  New  arrangements 
with  Great  Britain  in  1862. 

§  201.  Nationality  of  vessels  a  legitimate  matter  for  inquiry  in  peace. 
§  202.  Right  of  search  for  her  seamen  claimed  by  Great  Britain. 


CONTENTS.  15 

CONCLUSION. 

DEFECTS,   SANCTIONS,   PROGRESS,   AND  PROSPECTS   OF   INTERNATIONAL   LAW. 

§  203.  Defects  of  international  law.     1.  Its  uncertainty. 

§  204.  2.  Its  narrow  limits. 

§  205.  3.  There  is  no  umpire  in  controversies. 

§  206.  Projects  of  peace  between  nations.      1.  St.   Pierre's.     2.   J.  Bentham's. 

3.  Kant's.     Wm.  Ladd's  essay. 
§  207.  Sanctions  of  international  law. 
§  208.  Progress  and  improvement  of  international  law. 
§  209.  Its  prospects  for  the  future. 
§  210.  Importance  of  the  study,  especially  in  this  country. 

Appendix  I.  Selection  of  wcrks  relating  to  international  law. 

Appendix  IL  List  of  the  principal  political  treaties  since  the  Reformation. 


INTERNATIONAL    LAW. 


INTRODUCTORY    CHAPTER.     . 

» 

DEFINITION,    GROWTH,    JUEAL     AND     MORAL     GROUNDS,    SOURCES     OF 
INTERNATIONAL    LAW. 

§1- 

LN  order  to  protect  the  individual  members  of  human  so 
ciety  from  one  another,  and  to  make  just  society  possible,  the 
Creator  of  man  has  implanted  in  his  nature  certain  concep 
tions  which  we  call  rights,  to  which  in  every  case  obligations 
correspond.  These  are  the  foundation  of  the  system  of  justice, 
and  the  ultimate  standard  with  which  laws  are  compared,  to 
ascertain  whether  they  are  just  or  unjust.  They  involve,  amid 
all  the  inequalities  of  condition,  a  substantial  equality  of  the 
members  of  society  before  the  tribunal  of  law  and  justice,  be 
cause  the  physical,  intellectual,  and  moral  natures  of  all  imply 
the  same  capacity  and  destination,  and  because  to  the  capacity 
and  destination  of  man  his  rights  or  powers  of  free  action 
must  correspond.  On  this  basis  within  the  state,  and  often 
without  any  direct  co-operation  of  its  members,  a  system  of 
law  grows  up,  which,  while  it  may  be  imperfect,  approaches 
with  the  progress  of  the  society  in  knowledge  and  moral  cul 
tivation  to  the  standard  of  perfect  justice.. 

And  even  the  moral  progress  of  society,  the  ability  of  its 

members  to  acknowledge  their  reciprocal  claims,  and  discharge 

their  duties  to  each  other — to  fulfil  their  part  in  that  moral 

sphere  which  lies  in  great  measure  quite  beyond  the  reach  of 

2 


18  INTRODUCTORY   CHAPTER.  §  2 

positive  law — this  also  is  dependent  to  a  great  degree  upon 
their  correct  estimate  of  rights  and  obligations. 

§2- 

Nations  or  organized  communities  of  men  differ  from  the 
individual  men  of  a  state,  in  that  they  are  self-governed,  that 
no  law  is  imposed  on  them  by  any  external  human  power,  but 
they  retain  the  moral  accountable  nature,  which  must  govern 
the  members  of  a  single  society.  They  cannot  have  intercourse 
with  one  another  without  feeling  that  each  party  has  rights 
and  obligations.  They  have,  as  states,  a  common  nature  and 
destination,  whence  an  equality  of  rights  arises.  And  hence 
proceeds  the  possibility  of  a  law  letiveen  nations  which  is,  just, 
as  expressing  reciprocal  rights  and  obligations,  or  just  as  ex 
pressing  a  free  waiver  of  the  rights  which  are  by  all  acknowl 
edged,  and  which  may  also  embody  by  mutual  agreement  rules 
defining  their  more  obvious  claims  and  duties,  or  aiming  to 
secure  their  common  convenience  and  welfare.  (Comp.  §  27.) 

This  law  of  intercourse  between  nations  has  been  united 
with  political  law,  or  the  doctrine  concerning  the  constitution 
of  the  state  and  the  relations  of  the  government  to  the  people, 
under  the  head  of  public  law,  as  opposed  to  private,  or  to  the 
system  of  laws  within  the  state,  by  which  the  relations  of  its 
individual  members  are  defined  and  protected.*  And  yet 
there  is  a  branch  of  this  law  which  has  both  a  private  and  a 
public  character, — private  as  relating  to  persons,  and  public  as 
agreed  upon  between  nations.  This  law  is  now  extensively 
called  international  law. 

§3. 

International  law,  in  a  wide  and  abstract  sense,  would  em- 
intemationai  brace  those  rules  of  intercourse  between  nations, 

law  in  the  wid-  ' 

estBense.  which  are  deduced  from  their  rights  and  moral 

claims ;  cr  in  other  words,  it  is  the  expression  of  the  jural 
and  moral  relations  of  states  to  one  another. 

*  Comp.  for  example,  Kliiber,  §2,  and  for  the  next  remark  Hurd's  Law  of  Free 
dom  and  Bondage,  §  25.  The  Germans  excel  us  in  the  neatness  of  their  divisions 
of  jural  science,  e.  g.  Offentliches  recht  is  divided  into  Staatsrecht  and  Yolkerrecht. 


§6  INTERNATIONAL    LAW.  19 

According  to  this  definition,  if  we  could  once  find  ont 
what  are  the  rights  and  obligations,  the  moral  claims  and 
duties  of  nations  as  such,  by  mere  deduction,  the  principles  of 
this  science  would  be  settled.  But  such  an  abstract  form  of 
the  science,  commanding  general  assent,  neither  has  appeared, 
nor  is  likely  to  appear.  The  advantage  of  separating  inter 
national  law  in  its  theoretical  form  from  the  positive  existing 
Code,  depends  not  on  the  possibility  of  constructing  a  perfect 
code  according  to  a  true  theory,  but  on  the  fact,  that  right 
views  of  justice  may  serve  as  a  touchstone  of  actual  usages  and 
regulations  ;  for  in  all  jural  science  it  is  most  important  to  dis 
tinguish  between  the  law  as  it  is,  and  as  it  ought  to  be.  This 
same  distinction  is  made  by  those*  who  discriminate  between 
international  law, — the  positive  admitted  law, — and  interna 
tional  morality.  But  the  latter  term  must  be  objectionable 
to  those  at  least  who  make  a  distinction  between  morals  and 
jus.  The  law  of  nations,  both  as  it  is  and  as  it  ought  to  be, 
does  not  confine  itself  within  the  jural  sphere. 

§4. 

In  a  more  limited  sense  international  law  would  be  the 
system  of  positive  rules,  by  which  the  nations  of  intern,  law  m  a 

.  J  .  ,  more    limited 

the  world  regulate  their  intercourse  with  one  an-  sense. 
other.  But  in  strictness  of  truth  this  definition  is  too  broad, 
for  there  is  no  such  law  recognized  as  yet  through  all  nations. 
Neither  have  the  more  civilized  states  of  the  East  agreed  with 
those  of  Europe,  nor  the  states  of  antiquity  with  those  of 
modern  times,  unless  it  be  in  a  few  provisions,  which  together 
would  constitute  an  exceedingly  meagre  code. 

§M 
o. 

Coming  within  narrower  limits,  we   define  international 
law  to  be  the  aggregate  of  the  rules,  which  Chris-  Actual  positive 
tian  states  acknowledge,  as  obligatory  in  their  re-  mtcriu  law 
lations  to  each  othev,  and  to  each  other's  subjects.     The  rules 

*  Comp.  an  article  attributed  to  Mr.  Senior  in  Edinburgh  Review,  No.  156,  for 
April,  1843. 


20  INTRODUCTORY   CHAPTER.  §6 

also  which  they  unite  to  impose  on  their  subjects,  respectively, 
for  the  treatment  of  one  another,  are  included  here,  as  being  in 
the  end  rules  of  action  for  the  states  themselves.  Here  notice, 

1.  That  as  Christian  states  are  now  controllers  of  opin- 
ding  beyond  i°n  among  men,  their  views  of  law   are  begin- 

,  ning  to  spread  Beyond  the  bounds  of  Christen 
dom,  as  into  Turkey  and  China. 

2.  That  the  definition  cannot  justly  be  widened  to  include 
but  not  observed  "the  law  which  governs  .Christian  states  in  their 

ges-  intercourse  with  savage  or  half-civilized  tribes  ;  or 
even  with  nations  on  a  higher  level,  but  lying  outside  of  their 
forms  of  civilization.  In  general,  towards  such  nations,  they 
have  acted  on  the  principle  that  there  is  no  common  bond  of 
obligation  between  them  and  the  other  party,  observing  so 
much  of  international  law  as  suited  their  policy  or  sense  of 
right  at  the  time.  Especially  towards  savage  tribes  they  have 
often  acted  with  flagrant  selfishness,  as  if  they  feared  no  retri 
bution  from  a  weaker  party,  or  were  beyond  the  reach  of  pub 
lic  opinion.  (Comp.  §  136,  and  §  204.) 

3.  The  rules  of  action  agreed  upon  by  two  or  more  Chris 
tian  states,  but  not  by  all,  or  the  most  of  them,  form  no  part 
of  international  law ;    although  they  often  illustrate  it,  and 
often  pave  the  way  for  the  admission  of  new  modifications  of  it. 

4.  Nations,  it  is  conceded  by  all,  have  obligations  towards 
foreigners,  who  are  not  constituent  parts  of  any  nation  ;  or,  at 
least,  of  a  nation  by  which  the  law  of  nations  is  acknowledged. 
The  consideration  of  the  rights,  or  moral  claims  of  such  per 
sons,  belongs  to  international  law,  not  as  the  system  of  rules 
observed  between  nations,  but  as  involving  obligations  which 
all  nations,  or  all  Christian  nations,  acknowledge. 

'  '  O 

§6. 

The  way  in  which  positive  international  law  becomes  such, 
Genesis  of  intern,  shows  that  it  must  be  progressive  and  somewhat 
tary  nature.  uncertain.  Eight,  as  Heffter  remarks,*  is  either 
guaranteed,  under  the  protection  and  force  of  a  competent 

*  Volkerrecht,  §  2. 


§6  INTERNATIONAL    LAW.  21 

power,  (as  we  see  it  in  the  state,)  or  free,  that  is,  the  individ 
ual  power  or  person  must  protect  and  preserve  it  for  himself. 
The  law  of  nations  is  of  this  latter  kind.  First  of  all,  the 
single  state  sets  up  for  itself  its  views  of  right  against  other 
states.  If  it  gives  up  its  isolation,  it  freely  forms  in  inter 
course  with  other  states  a  common  right  or  law,  from  which 
now  it  can  no  longer  set  itself  free,  without  offering  up,  or  at 
least  endangering,  its  peaceful  relations,  and  even  its  exist 
ence. 

Thus  a  law  of  nations  can  grow  up  only  by  the  consent  of 
the  parties  to  it.  It  is,  therefore,  more  a  product  of  human 
freedom  than  the  municipal  law  of  a  particular  state.  Its 
natural  progress  is  to  start  from  those  provisions  which  are 
necessary  in  conducting  political  and  commercial  intercourse, 
while  it  leaves  untouched,  for  a  time,  many  usages  which  are 
contrary  to  humanity  and  morality ;  until,  with  the  advance 
of  civilization,  the  sway  of  moral  ideas  becomes  stronger.  It 
grows  into  a  system  of  tolerable  justice  and  humanity  after, 
perhaps  long  after,  municipal  legislation  has  of  later  growth 
worked  itself  clear  of  many  faults  and  errors.  than<  state  law- 
For  although  both  branches  of  law  have  the  same  foundation 
of  justice,  and  although  a  state,  like  Eome,  for  example,  with 
an  advanced  system  of  internal  laws,  ought  to  have  its  views 
of  international  obligations  purified ;  yet,  as  states  have  di 
verse  interests  and  opinions,  it  takes  time  before  a  seeming 
^nterest  can  be  given  up,  even  after  right  is  acknowledged  to 
be  on  the  other  side  ;  and  it  takes  time  to  bring  the  views  of 
nations  to  a  common  standard.* 

*  A  state  in  the  lower  grade  of  civilization,  like  a  savage,  bcccnics'ccnscious  of 
its  separate  existence  in  the  act  of  resistance,  or  of  defending  that  existence.  Such 
self-preservation  on  the  part  of  the  individual  arouses,  it  may  be,  no  better  feeling 
than  that  of  independence  and  self-reliance ;  in  the  state  it  helps  the  members  to 
feel  their  unity  and  dependence,  and  the  priceless  value  of  the  state  itself.  Hence 
war  is  a  moral  teacher :  opposition  to  external  force  is  an  aid  to  the  highest  civic 
virtues.  But  if  this  were  all  there  could  be  no  recognition  of  obligations  towards 
foreigners,  no  community  of  nations,  in  short,  no  world.  These  conceptions  grow 
up  in  man,  from  the  necessity  of  recognizing  rules  of  intercourse,  and  intercourse  is 
itself  a  natural  necessity  from  the  physical  ordinances  of  God.  Self-protection  and 


22  INTRODUCTORY   CHAPTER.  §7 


The  same  causes  which  have  enabled  Christian  states  to 
this  law     reach  a  higher  point  of  civilization  than  any  other, 

arose  in  Christian  _  -,        i  t        n  p 

states.  have  made  them  the  first  to  elaborate  a  system  oi 

international  law.  These  causes  have  been  principally,  (1.) 
the  high  moral  standard  of  the  religion  which  they  in  common 
professed,  —  a  religion  which  cultivates  alike  the  sentiments  of 
justice  and  humanity  ;  (2.)  the  inheritance  which  came  to  them 
of  philosophy  and  legal  science  from  the  classical  states  of  an 
tiquity,  and  especially  the  system  of  Roman  law  ;  and  (3.)  a 
close  historical  connection  since  the  times  of  the  Roman  em 
pire,  favoring  the  spread  of  common  ideas.  Thus  the  same 
religious  and  jural  views,  and  a  similar  historical  development, 
give  rise  to  a  community  of  nations,  where  it  is  comparatively 
easy  for  common  usages  to  grow  up.  No  such  common  feel 
ing,  but  quite  the  opposite,  existed  between  them  and  their 
Mohammedan  neighbors  ;  and  hence  the  latter  were  long  shut 
out  from  the  pale  of  their  international  law. 

§8- 

In  other  parts  and  ages  of  the  world  laws  have  grown  up, 

intern,  law  cisc-  m  groups  of  nations,  for  the  regulation  of  their 

perfectquite  im~  conduct  to  each  other.     But  these  have  all  been 

Greece  and     partial,  and  were  never  constructed  into  a  science. 

The  classic  states  .of  antiquity  had,  at  the  best,  a 

very  simple  and  imperfect  body  of  such  rules  and  usages.    Am 

bassadors  and  heralds  had  a  sacred  character  ;  truces  and  treatiel 

were  acknowledged  to  be  obligatory  ;  war  was  usually  begun 

with  an  open  declaration,  and,  perhaps,  with  solemn  formali 

ties;   biA  when   once   begun,  it  was  waged  with   little  rule 

or   check.      The  Greeks  were  favorably  situated 

for  the  development  of  a  Hellenic  international 

law;    for,  like   the   Christian   states   of  modern   times,  they 

formed  a  circle  of  communities,  standing  at  nearly  the  same 

intercourse  are  thus  the  two  sources  of  international  law  ;  they  make  it  necessary, 
and  the  conception  in  man  of  justice,  of  rights  and  obligations,  must  follow,  because 
he  has  a  moral  nature. 


§8  INTERNATIONAL    LAW.  23 

level  of  civilization,  and  in  religion,  as  well  as  historical  tradi 
tions,  connected  with  one  another.  And,  in  fact,  the  rudi 
ments  of  such  a  law  appear  in  the  course  of  Greek  history. 
They  generally  gave  quarter,  allowed  the  ransom  of  prisoners, 
respected  trophies,  and  consented  to  truces  for  the  burial  of 
the  dead.  They  acted  on  the  principle  of  the  balance  of  pow 
er  against '  a  dangerous  and  ambitious  state  belonging  to  their 
circle ;  they  had  a  usage  bearing  some  resemblance  to  the 
modern  consular  system;  and  they  sometimes  by  treaties  or 
perpetual  leagues,  as  the  Amphictyonic,  secured  the  existence 
of  the  parties  concerned,  or  even  softened  the  severities  of 
war.*  But  towards  barbarians  they  acted  almost  without 
rule,  and  among  themselves  permitted  the  most  flagrant  acts 
of  inhumanity. 

The  Eomans  had  less  of  international  law  than  the  Greeks, 
and  were  less  scrupulous,  if  we  except  their  ob 
servance,  in  their  earlier  days,  of  the  fecial  rules, 
which  accorded  so  well  with  the  formality  of  their  religious 
character.     The  reason  of  this  appears  to  be  that,  after  they 
became  masters  of  Italy,  many  of  the  nations  they  encoun 
tered  were  of  another  type  than  their  own,  and  for  the  most 
part  in  decay,  or  half  civilized ;  not  in  any  respect  their  equals. 
Towards  such  enemies  they  could  act  as  their  convenience  dic 
tated. 

It  has  been  said,  that  the  Greeks  had  no  international  law 
at  all :  and  the  same  arguments  would  denv  the  NO  reason  for  say- 

,  J  in?  that  they  hud 

existence  of  such  a  law  among  the  Romans,  in  no  intern,  law. 
their  earliest  times. f     There  seems  to  be  no  sufficient  ground 
for  this  opinion.     Neither  nation  may  have  reached  an  accu 
rate  notion  of  an  international  lav/,  but  they  had  usages  cor 
responding  to  those  which  nations  under  such  a  law  now  ob- 

*  Thus  the  old  Amphictyonic  league  contemplated  an  armed  intervention  for  the 
security  of  any  member  threatened  with  utter  ruin  by  another ;  and  no  state  belong 
ing  to  the  league  was  to  be  deprived  in  war  of  the  use  of  its  fountain  water.  JEs- 
chines  de  fals.  leg.  §  115,  Bekk. 

f  A  controversy  was  carried  on  in  regard  to  the  Greeks  between  Wachsmuth  and 
Heffter,  the  former  affirming  the  existence  of  a  law  of  nations  among  them,  the  lat 
ter  denying  it.  Comp.  Osenbriiggen  de  jure  belli  et  pacis  (Lips.  1836),  p.  4,  seq. 


24:  INTRODUCTORY  CHAPTER.  §8 

serve ;  and  if  these  usages  were  placed  under  the  sanction  of 
religion,  to  secure  for  them  a  more  thorough  observance,  that 
religious  character  no  more  takes  them  out  of  the  category  of 
laws  regulating  conduct  towards  other  states,  than  the  same 
religious  sanction  given  to  the  duty  of  hospitality  took  this 
duty  out  of  the  list  of  moral  precepts.  All  morality  and  jus 
are  sanctioned  by  religion,  and  sometimes  the  forms  of  religion 
grow  on  to  them  so  as  to  give  them  a  religious  aspect.  The 
fecial  law  in  Rome's  earlier  days  must  have  been  the  common 
property  of  all  the  Latin  cities,  a  living  law  under  the  protec 
tion  of  the  higher  powers,  introduced  to  prevent  or  to  initiate 
a  state  of  war.  (Comp.  §  115.) 

But  in  mediaeval  Europe,  also,  the  law  of  nations  was  of 
intern,  law  in  the  s^ow  growth,  and  for  a  time  it  scarcely  rose  above 
Middle  Ages.  t]ie  level  which  it  reached  in  Greece  and  Rome. 
Especially  was  this  the  case  during  the  period  of  dissolution 
and  reconstruction,  and  so  long  afterwards  as  national  exist 
ence  was  kept  down  by  the  spirit  of  feudalism.  The  princi 
pal  causes  which  modified  it  were,  together  with  this  of  feu 
dalism,  the  spirit  of  chivalry,  the  influence  of  Christianity,  and 
the  centralized  government  of  the  Christian  church.  Feudal 
ism,  by  breaking  up  society  into  portions  slightly  united  to 
gether,  made  the  progress  of  better  usages,  and  the  triumph 
of  right  over  will  an  uphill  work ;  it  increased  the  tendency 
to  private  war,  and  sanctioned  the  right  of  resistance  to  the 
central  government ;  and  it  involved  the  presence  on  the  soil 
of  a  large  mass  of  men  who  had  almost  no  rights.  But  the 
spirit  of  chivalry,  by  encouraging  high  sentiments  of  honor 
and  fidelity,  gave  a  moral  sanction  to  the  observance  of  trea 
ties,  and  rendered  fraud  and  unfair  advantages  over  a  rival 
unworthy  of  the  true  knight ;  it  threw  a  lustre  over  the  de 
fence  of  the  weak  and  unprotected ;  and  it  cultivated  human 
feelings  towards  each  other  among  the  rulers  of  society.  The 
spirit  of  Christianity,  also, — which,  indeed,  was  at  work  in  the 
origination  of  chivalry  itself — did  much  to  facilitate  intercourse 
among  men  of  a  common  faith ;  it  stopped,  as  far  as  it  could, 
private  wars ;  it  opposed  the  barbarity  of  selling  Christians  as 


§8  INTERNATIONAL    LAW.  25 

slaves,  and  introduced  a  sofnewhat  milder  treatment  of  cap 
tives  taken  in  war ;  and  it  lent  its  sanction  to  all  moral  obliga- 

"  o 

tions.  But  it  was  neither  pure  nor  strong  enough  to  introduce 
a  kind  treatment  of  infidels,  nor  did  it  prevent  various  kinds 
of  inhumanity,  in  peace  as  well  as  war,  between  Christians. 

The  government  of  the  church  by  a  monarch,  who  gradu 
ally  gained  great  political,  by  means  of  religious,  power,  was 
the  source  of  the  most  striking  peculiarities  of  the  public  law 
of  the  mediaeval  period.  The  presence  in  Europe  of  an  ulti 
mate  interpreter  in  religious  and  moral  questions,  doubtless 
did  great  good  as  well  as  harm.  Every  important  question  of 
politics  had  a  bearing  on  religion,  which  could  bring  it  up  for 
examination  and  settlement  before  the  Pope ;  and  perhaps  the 
very  vagueness  of  the  theory  of  papal  interference  aided  its 
success  on  favorable  occasions.  In  a  gloss  to  the  canon  law  (c. 
2,  Can.  xv.,  qu.  6),  it  is  said  of  the  dispensing  power  of  the 
Roman  See,  that  "  contra  jus  naturale  Papa  potest  dispensare, 
dum  tamen  non  contra  Evangelium ; "  and  the  great  Pope  In 
nocent  III.,  said :  "  Nos  secundum  plenitudinem  potestatis  de 
jure  possumus  supra  jus  dispensare."  (C.  4,  x.  de  concessione 
prsebendse.)  This  dispensing  power  extended  to  oaths.  The 
oath  of  fealty  was  the  moral  cement  of  society,  the  last  cord 
which  bound  the  vassal  to  the  suzerain.  But  the  Popes  as 
serted  the  right  of  releasing  vassals  from  their  oaths  of  alle 
giance,  on  the  plea  that  the  suzerain,  who  was  disobedient  or 
hostile  'to  the  church,  might  be  proceeded  against  even  to  ex 
communication,  and  an  outlaw  as  to  church  rights  ought  not 
to  rule  over  Christians.  In  the  disputes  of  kings,  the  weaker 
party  often  appealed  to  the  Pope,  and  thus  gave  him  an  op 
portunity  to  arbitrate  or  command.  Treaties  confirmed  by 
w^ord  of  honor  and  solemn  oath  were  open  to  the  papal  revi 
sion.  Word  might  be  broken  with  heretics,  as  the  enemies  of 
Christ.  In  the  noted  case  of  Huss,  who  had  received  a  safe 
conduct,  the  Council  of  Constance  resolved  that  it  was  lawful 
for  a  competent  ecclesiastical  judge  to  proceed  against  and 
punish  obstinate  heretics,  "  etiamsi  de  salvo  conductu  confisi  ad 
locum  venerint  judicii,  alias  non  venturi."  ~x' 

*  Gieseler,  Kirchengesch.  II.,  part  4,  418. 


26  INTRODUCTORY  CHAPTER.  §  9 

The  neighborhood  of  dreaded  Enemies  of  the  Christian  re 
ligion, — of  encroaching  Mohammedan  powers, — brought  up 
the  question  whether,  compacts  could  be  made  with  infidels. 
This  could  not  be  avoided,  if  the  two  religions  should  have 
any  intercourse,  as  in  Spain ;  but  the  lawfulness  of  treaties, 
especially  of  alliances  with  them  was  denied.  Fulk,  Archbish 
op  of  Bheims,  told  Charles  the  Simple,  that  there  was  no  dif 
ference  between  becoming  the  ally  of  Pagans  and  abandoning 
God  for  the  worship  of  idols.  (Grotius  II.  11,  §  3.)  And  this 
feeling,  that  whilst  leagues  of  peaceful  intercourse  could  be 
entered  into  with  infidels,  alliances  with  them  were  forbidden 
by  Christian  law,  long  remained ;  and  was  strengthened,  no 
doubt,  by  the  apprehension  that  thus  the  scandal  would  arise 
of  Christians  leagued  with  unbelievers  against  fellow  Chris 
tians.* 

Many  cruelties  handed  down  from  barbarous  times  held 
their  ground  through  the  mediaeval  period.  Thus  strangers 
were  capriciously  treated,  and  had  scarcely  any  rights.  (Comp. 
§  63.)  After  this  period  was  over,  Cardinal  Kichelieu  showed 
its  influence,  by  avowing  the  right  of  arresting  all  strangers 
who  came  into  the  kingdom  without  safe  conducts;  and  a 
number  of  examples  occur  in  those  times  of  illustrious  stran 
gers,  like  Cceur  de  Lion  in  1192,  who  when  thrown  by  some 
accident  on  Christian  shores  were  kept  in  captivity  until  they 
were  ransomed.  Cruelties  in  war,  of  which  we  speak  below 
in  §§  128,  129,  although  often  prevented  by  the  genius  of 
Christianity,  were  still  common  enough.  Captives  were  held 
for  a  ransom,  or  even  sold.  The  serf  felt  the  full  severity  of 
war.f 

§9. 

Our  science  was  called  first  by  Zouch,  (professor  at  Oxford,) 
Names  given  to  m  his  j"118  feciale,  1650, /MS  inter  gentes.  Its  com- 
tWB  science.  mon  English  appellation  formerly  was,  the  law  of 
nations.  Since  Bentharn  led  the  way,  it  has  been  called  inter- 

*  Sir  E.  Coke  condemns  alliances  with  infidels  in  a  passage  of  his  4th  institute 
cited  by  Ward,  and  his  contemporary  Grotius  (ubi  supra)  does  not  like  them. 
f  See  Ward's  Hist,  passim. 


§  10  INTERNATIONAL    LAW.  37 

national  law.  A  distinction  of  no  great  value  has  been  set 
up  between  these  two  terms,  according  to  which  the  former 
relates  to  the  historical  character  or  origin  .of  the  law,  and  the 
latter  to  its  jurisdiction  or  application.*  They  will  be  used 
by  us  as  equivalents. 

The  law  of  nations,  jus  inter  g&ntes,  is  not  to  be  confounded 
with  the  jus  gentium  of  the  Romans.  This  term  Not  tho  eame  as 
denoted  the  principles  and  usages  of  law  common  jus  seutium- 
to  all  nations,  that  is,  practically,  to  all  nations  known  to  the 
Romans,  as  contrasted  with  what  was  peculiar  to  the  jus  civile^ 
the  law  of  Rome  itself.  Gaius  says,  (Inst.  i.  §  1,)  "  quod  natu- 
ralis  ratio  inter  omnes  homines  constituit,  id  apud  omnes  popu- 
los  peraeque  custoditur,  vocaturque  jus  gentium,  quasi  quo  om 
nes  gentes  utuntur."  Ulpian  says,  (frag.  i.  1,  §  4)  "jus  gen 
tium  est  quo  gentes  humanse  utuntur."  These  common  usages 
of  nations  may  run  through  all  the  fields  of  law,  and  so  will 
include  some  rules  of  the  international  code.  But  the  two 
evidently  cover  different  ground,  and  the  civil  law  never  dis 
tinctly  contemplates  a  law  of  nations  in  the  modern  sense. 

§10. 

It  is  important,  again,  not  to  confound  international  law 
with  natural  law.  —  or,  as  it  has  been  variously  Different  from  jua 

/          7      -i  T  naturale  orlexna- 

naturale,  lex  naturalis,  and  lex  naturae.  tur». 


Jus  naturale  is  the  product  of  natural  reason,  and  ought,  since 
men  are  alike  in  their  sense  of  justice,  to  be  everywhere  sub 
stantially  the  same.  According  to  Gaius  and  most  other  Ro 
man  lawyers,  it  is  not  different  from  jus  gentium,  as  already 
defined.  But  Ulpian  and  others  make  a  distinction  between 
the  two,  which  has  passed  into  the  institutes  of  Justinian,  with 
out,  however,  influencing  Roman  law.  To  them  jus  naturale  is 
that  in  which  men  and  animals  agree,  —  the  law  stamped  on 
free  animate  beings.  Savigny  thus  explains  their  views  :  f 
"  there  was  a  time,  we  may  conceive,  when  men  acknowledged 
only  those  relations  which  are  common  to  man  and  beast,  when 

*  Reddie,  quoted  by  Hurd,  Law  of  Freedom  and  Bondage,  i.  46. 
f  System  des  heut.  rom.  Rechts,  i.  415. 


28  INTRODUCTORY  CHAPTER.  §11 

they  followed  natural  affections  and  impulses,  in  all  freedom. 
This  was  the  reign  of  jus  naturale.  To  this  succeeded  an  age 
of  founding  states,  when  slavery,  private  property,  and  obliga 
tions  were  introduced,  and  introduced  everywhere  alike.  This 
was  the  jus  gentium.  At  last  jus  was  developed  in  each  state 
in  its  own  peculiar  way  bv  modifying  old  institutions,  or  set 
ting  up  new  ones*." 

§11. 

Modern  writers  have  retained  the  term  in  an  altered  signi 
Definition  of  jus  fication.     Grotius  (1. 1,  §  10)  defines  it  to  be  "  die 

naturale  by  Gro-  ,      ,.       . 

tius.  tatum  rectse  ratioms,  maicans  actui  alicui,  ex  ejus 

convenientia  aut  disconvenientia  cum  ipsa  natura  rationali  ac 
sociali,  inesse  moralem  turpitudinem  aut  necessitatem  mora- 
lem,*  ac  consequenter  ab  auctore  naturae  Deo  aut  vetari  aut 
prsecipi." 

Grotius  thus  uses  the  term  to  include  morality  and  jus,  as 
the  foundation  of  jus  voluntarium,  that  is,  as  the  standard  to 
which  law  civil  or  international  ought  to  be  conformed.  But 
existing  law  may  differ  widely  from  it. 

§12. 

Puffendorf  's  work  on  the  law  of  nature  and  nations  differs, 
Puffendorf  con-  ^°  n^s  disadvantage,  from  that  of  Grotius,  in  mak- 
tfu?aiesandsintera:  ing  ^&Q  account  of  usage  and  voluntary^.  Ac 
cording  to  Grotius,  the  law  of  nations  is  jus  illud, 
quod  inter  populos  plures  aut  populorum  rectores  intercedit, 
moribus  et  pacto  tacito  introductum.  Puffendorf,  as  Mr.  Wild- 
man  says,t  "  entirely  denies  the  authority  of  general  usage ;  and 

*  /.  e.  a  morally  binding  force.  ITartenstein,  in  his  valuable  essay  on  the  -work 
of  Grotius,  (Abhandl.  der  Leipz.  Geselsch.  i.  504,  509)  reduces  the  uses  made  by 
Grotius  of  the  term  jus  naturale  to  these  three  heads :  (1.)  To  the  general  obligation 
to  satisfy  moral  claims,  especially  the  more  definite  claims  of  jus  and  equity.  (2.) 
To  the  claims  or  rights  which  grow  out  of  the  nature  of  man,  and  would  be  acknowl 
edged  in  an  incorrupt  society,  were  there  no  organized  state.  (3.)  To  certain  effects 
and  results  of  acts  of  human  will.  Thus,  Grotius  would  say,  man's  will  originated 
property,  but  when  once  property  was  introduced,  jus  naturale  indicated  that  it  is 
•wrong  for  one  to  take  what  is  another's  without  his  consent. 

f  Institutes  of  International  Law,  I.  28. 


§  14  INTERNATIONAL    LAW.  29 

his  doctrine,  putting  aside  the  mass  of  words  with  which  he 
has  encumbered  it,  amounts  to  this  ;  that  the  rules  of  abstract 
propriety,  resting  merely  on  unauthorized  speculations,  and 
applied  to  international  transactions,  constitute  international 
law,  and  acquire  no  additional  authority,  when  by  the  usage 
of  nations  they  have  been  generally  received  and  approved  of. 
So  that  the  law  of  nations,  according  to  Puffendorf,  ends, 
where  according  to  Grotius  it  begins." 

Thus  Puffendorf  commits  the  faults  of  failing  to  distin 
guish  sufficiently  between  natural  justice  and  the  law  of  na 
tions  ;  of  spinning  the  web  of  a  system  out  of  his  own  brain, 
as  if  he  were  the  legislator  for  the  world ;  and  of  neglecting 
to  inform  us  what  the  world  actually  holds  to  be  the  law  by 
which  nations  regulate  their  intercourse.  Probably  he  was  led 
into  this  by  not  discriminating  clearly  between  the  jits  gentium 
of  the  Eomans  and  the  jus  inter  gentes  of  modern  publicists. 

§13. 

An  opposite  course  to  this  is  to  exhibit  international  law 
in  its  positive  form,  as  it  lies  in  the  practice  and  Positive  method 

L    .  .  _  in     intern,    law. 

understanding  of  a  certain  group  of  nations,  either  its  deficiencies. 
without  reference  to  any  jural  or  moral  standard,  or  with  re 
course  to  moral  considerations  only  now  and  then  in  disputed 
cases.  This  is  a  safe  method,  but  narrow ;  and  almost  takes 
away  scientific  character  from  the  subject-matter  to  whicli  it  is 
applied.  What  would  municipal  law  be  worth,  if  it  did  not 
point  back  to  eternal  right,  and  if  by  tracing  it  to  its  source  it 
might  not  be  made  purer  and  more  righteous  ?  If  international 
law  were  not  made  up  of  rules  for  which  reasons  could  be 
given,  satisfactory  to  man's  intellectual  and  moral  nature  ;  if  it 
were  not  built  on  principles  of  right ;  it  would  be  even  less  of 
a  science  than  is  the  code  which  governs  the  actions  of  polite 
society. 

§14. 

A  very  narrow  foundation  is  laid  for  this  science  by  those 
who  would  build  it  on  the  obligation  to  keep  ex-  Intern.  law  not 
press  or  tacit  contracts.  In  every  contract  it  may  Jontreot1 
be  asked  whether  the  parties  have  a  right  to  act  at  tlon* 


30  INTRODUCTORY   CHAPTER.  §15 

all,  and  if  so,  whether  they  can  lawfully  enter  into  the  specific  re 
lations  which  the  contract  contemplates.  Can  two  nations  agree 
lawfully  to  destroy  the  political  life  of  a  peaceful  neighbor,  and 
divide  its  territories  between  them  ?  We  look  beyond  a  con 
tract  for  its  moral  grounds.  It  is  true,  indeed,  that  a  law  con 
trolling  independent  sovereigns  can  only  become  such  by  their 
free  consent ;  it  must,  as  we  have  seen,  be  voluntary.  But  this 
code  of  voluntary  rules  cannot  for  that  reason  be  arbitrary, 
irrational,  or  inconsistent  with  justice. 

§15. 

There  are,  then,  always  two  questions  to  be  asked  ;  the  first, 
The  two  aspects  an^  m°st  important,  What  is  the  actual  under- 
Of intern. law.  standing  and  practice  of  nations?  otherwise  we 
have  a  structure  that  floats  in  the  air,  subjective  speculation, 
without  authority ;  and  the  second.  On  what  rational  and 
moral  grounds  can  this  practice  be  explained  and  defended  ? 
otherwise  it  is  divorced  from  truth  and  right,  mere  fact  only 
being  left  behind. 

But  what  are  the  rational  and  moral  grounds  of  interna- 
jurai  grounds  of  tional  law  ?  The  same  in  general  with  those  on 
intern,  law.  which  the  rights  and  obligations  of  individuals,  in 
the  state,  and  of  the  single  state  towards  the  individuals  of 
which  it  consists,  repose.  If  we  define  natural  jus  to  be  the 
science,  which  from  the  nature  and  destination  of  man  deter 
mines  his  external  relations  in  society,  both  the  question,  What 
ought  to  be  the  rights  and  obligations  of  the  individual  in  the 
r  state  ?  and  the  question,  What  those  of  a  state  among  states 
ought  to  be  ?  fall  within  this  branch  of  science.  That  there 
are  such  rights  and  obligations  of  states  will  hardly  be  doubted 
by  those,  who  admit  that  these  relations  of  natural  justice 
exist  in  any  case.  There  is  the  same  reason  why  they  should 
be  applied  in  regulating  the  intercourse  of  states,  as  in  regu 
lating  that  of  individuals.  There  is  a  natural  destination  of 
states,  and  a  divine  purpose  in  their  existence,  which  make  it 
necessary  that  they  should  have  certain  functions  and  powers 
of  acting  within  a  certain  sphere,  which  external  force  may 


§  17  INTERNATIONAL    LAW.  31 

not  invade.  It  would  be  strange  if  the  state,  that  power 
which  defines  rights  and  makes  them  real,  which  creates  moral 
persons  or  associations  with  rights  and  obligations,  should  have 
no  such  relations  of  its  own, — should  be  a  physical  and  not  a 
moral  entity.  In  fact,  to  take  the  opposite  ground  would  be 
to  maintain  that  there  is  no  right  and  wrong  in  the  intercourse 
of  states,  and  to  leave  their  conduct  to  the  sway  of  mere  con 
venience.  (§  2.) 

§16. 

But  there  are  moral  relations,  also,  which  are  not  relations 
of  justice,  and  which  give  rise  to  international  M0ra]  eround8  Of 
morality.  It  may  be,  to  say  the  least,  that  nations  mtern  law' 
have  duties  and  moral  claims,  as  well  as  rights  and  obligations, 
In  matter  of  fact,  some  of  these  are  generally  acknowledged  by 
nations,  and  have  entered  into  the  law  of  their  intercourse,  as, 
for  example,  the  duty  of  comity  and  that  of  humanity.  These 
relations  were  called  by  the  older  writers  imperfect  rights  and 
obligations,  not  because  the  moral  ground  for  them  is  incom 
plete,  but  because  the  right  in  particular  cases  cannot  be  ascer 
tained,  and  therefore  ought  not  to  be  enforced,  nor  the  violation 
of  right  regarded  as  an  injury.  Several  recent  writers  give  to 
them  the  name  of  duties  and  moral  claims,  an  example  which 
we  shall  follow  in  this  work.* 

§17. 

Among  ihejural  principles  or  foundations  of  international 
law,  we  name 

1.  The  obligation  Iving;  on  the  state  to  protect  Particular  rights 

,         .  &  J       °  r  and     obligations 

the   individuals  who  compose  it,y  not  only  trom  of  nations. 
domestic,  but  also  from  foreign  aggression.     This  obligation 

*  Mr.  Wildman  observes,  that  "the  phrase  'moral  claim'  at  once  conveys  the 
idea  which  Fuffendorf  and  Vattel  have  employed  countless  pages  to  confuse."  (I.  4.) 
Dr.  Whewell  uses  this  term  in  his  Elements  of  Morality  and  Polity.  He  also  uses 
the  terms  jus  and  jural,  which  were  first  employed  by  Dr.  Lieber. 

f  The  English  language  wants  a  term  besides  citizen  and  subject,  more  general 
than  either,  and  without  the  idea  contained  in  the  latter,  of  being  under  the  control 
of  an  individual.  In  this  work  I  use  subject,  for  want  of  a  better  word,  to  denote 


32  INTRODUCTORY   CHAPTER.  §  18 

emanates  immediately  from  the  prime  function  and  end  of  a 
state,  and  is  limited  by  the  rightfulness  of  the  subject's  conduct 
in  his  intercourse  with  the  stranger. 

2.  Those  qualities  or  rights  which  are  involved  in  the  ex 
istence  of  the  state.     These  may  be  called  rights  of  sovereignty 
simply,  or  may  be  ramified  into  rights  of  sovereignty,  inde 
pendence,  and  equality.     The  exercise  of  these  rights  and  the 
right  of  self-protection  may,  together,  be  embraced  under  the 
head  of  rights  of  self-preservation.     (§  37.-) 

3.  Those  rights  which  the  state  has  in  common  with  indi 
viduals  or  with  artificial  persons,  as  the  right  of  property,  that 
of  contract,  and  that  of  reputation. 

4.  The  right  which  arises  when  the  free  exercise  of  the 
state's  powers  above  mentioned  is  impeded,  that  is,  the  right  of 
redress,  near  to  which  lie  the  questionable  rights  of  punishment 
and  of  conquest. 

Inasmuch  as  rights  and  obligations  are  correlative,  there  is 
obligations    and  an  obligation  lying  on  every  state  to  respect  the 

lights  correlative.  ^Is  of  eyery  ^^  t()  abstam  from  a]J  injury  and 

wrong  towards  it,  as  well  as  well  as  towards  its  subjects.  These 
obligations  are  expressed  in  international  law. 

§18. 

observations  on        Most  of  the  above  enumerated  powers  of  states 
are  plain,  but  one  or  two  need  a  little  explanation. 
1.  The  right  of  reputation.     This  right  when  viewed  in  re- 
i.  Right  of  Ropu-  lation  to  individuals,  seems  to  consist  of  two  parts, 
the  one  objective, — the  right  to  a  good  name,  the 
other  subjective, — the  right   of  exemption   from   insult   and 
causeless  wounding  of  the  feelings.      Corresponding  to  these 
rights  are  the  obligations  to  respect  a  man's  reputation,  and  to 
refrain  from  wounding  his  feelings  by  aspersions  on  his  charac 
ter.     These  rights  are  generally  blended,  but  may  exist  apart ; 
for  instance,  a  man  may  insult  another,  or  make  false  charges 
against  him,  when  no  one  else  knows  of  it.     These  rights,  but 

all  who  are  under  the  law ;  and  sovereign,  that  in  which  the  sovereign  power  resides, 
whether  an  individual  or  a  nation. 


§19  INTERNATIONAL    LAW.  33 

principally  the  objective  one,  form  the  ground  of  the  prosecu 
tions  for  slander  and  libel ;  and  a  large  part  of  private  feuds 
arise  from  their  violation.  The  honor  or  reputation  of  a  state 
is  equally  its  right ;  and  the  injury  done  by  violations  of  this 
right  will  seem  very  great,  when  we  consider  the  multitudes 
who  suffer  in  their  feelings  from  a  national  insult,  and  the 
influence  of  the  loss  of  a  good  name  upon  intercourse  with 
other  states,  as  well  as  upon  that  self-respect  which  is  an  im 
portant  element  in  national  character.  Regard  for  national 
reputation,  too,  increases  with  refinement  and  with  closeness 
of  communication.  The  Fejees  or  the  Hottentots  care  little 
how  the  world  regards  them,  but  the  opinion  of  civilized  na 
tions  is  highly  valued  by  all  those  states  which  are  now  fore 
most  in  human  affairs.  Without  such  a  value  set  on  reputa 
tion,  fear  of  censure  could  not  exist,  which  is  one  of  the  ultimate 
bulwarks  of  international  law. 

§19. 

2.  The  right  of  redress  exists  in  the  case  of  individuals, 
although  it  would  seem  that  a  person  cannot  with  2.  Right  of  re- 
justice  be  his  own  judge  and  redress  himself.  dress> 
Hence  the  need  of  courts  and  arbitrations  in  society,  which,  by 
their  impartiality,  knowledge  of  law  and  evidence,  and  habits 
of  judging,  approach,  as  nearly  as  finite  beings  can,  to  the  de 
cisions  of  absolute  truth.  Societies  or  states  must  have  not 
only  the  right  of  redress,  but  of  redressing  themselves  ;  the  for 
mer,  as  being  just  and  necessary  for  the  protection  of  all  rights ; 
the  latter,  because  they  havf  no  natural  superior, — because  in 
fact  they  are  vicars  of  God  within  a  certain  sphere.  It  may  be 
said  that  thus  they  become  judges  in  their  own  causes.  This 
is  true,  although  not  in  the  same  sense,  nor  with  the  same  vio 
lation  of  justice,  as  when  private  persons  redress  themselves ; 
for  the  proceedings  of  states  are  more  deliberate,  and  for  the 
most  part  the  same  body  within  the  state  is  not  at  once  the 
injured  and  the  redressing  party.  It  may  be  said  also  that  an 
impartial  court  selected  from  other  nations  would  be  more  just, 
and  ought  to  decide  in  international  disputes.  This  might  be 
3 


34  INTRODUCTORY   CHAPTER.  §  20,  a 

desirable,  but  it  does  not  appear  that  nations  are  for  that  reason 
bound  to  abstain  from  redressing  wrongs.  The  private  person 
has  a  natural  superior  in  the  state  to  which  he  is  bound  to  sub 
mit  ;  but  God  has  established  no  such  natural  superior  over 
nations. 

Redress  consists  in  compensation  for  injury  inflicted,  and 
for  its  consequences.     The  right  therefore  ceases 

Redress  what?  .     . ^  ,      °,   .  , 

when  the  injured  party  is  placed  in  as  good  a  situ 
ation  as  before.  Mingled  up  in  the  same  concrete  with  the  act 
Bon  aions?  with  °f  redress,  there  may  be  an  act  of  self-protection 
••elf -protection.  against  future  injury.  A  nation  may  have  shown 
such  a  disposition  to  do  wrong,  that  another  may  demand  secu 
rity  as  well  as  indemnity ;  and  this  security  may  proceed,  for 
any  thing  that  appears,  even  to  the  length  of  destroying  the 
wrong-doing  state's  existence. 

§  20,  a. 

3.  Grotius  held  that  a  state  has  the  right  to  punish  injuries, 
3.  iia*  a  state  the  committed  not  only  against  itself  and  its  subjects. 

rigbtofpunishing  •  .      , 

other  states?  ~  but  also  against  others  over  whom  it  has  no  guar 
dianship.  "  Sciendum  quoque  est,"  he  says  (II.  20,  §  40)  "  re- 
ges  et  qui  par  regibus  jus  obtinent,  jus  habere  poenas  poscendi 
non  tantum  ob  injurias  in  se  ant  subditos  suos  commissas,  sed 
et  ob  eas  quse  ipsos  peculiariter  non  tangunt,  sed  in  quibusvis 
personis  jus  'naturae  aut  gentium  immaniter  violant."  This 
right  he  derives  from  a  similar  right  of  individuals  in  a  state  of 
nature,  which  they  gave  up  to  society.  He  adds,  that  it  is 
more  praiseworthy  to  punish  in^iries  done  to  others  than  to 
ourselves,  inasmuch  as  we  are  then  less  likely  to  be  partial. 

Few,  if  any,  we  suppose,  would  now  undertake  to  defend 
the  explanation  here  given  by  Grotius,  of  the  state's  right  to 
punish ;  and  the  extent  which  he  gives  to  the  right  seems 
equally  objectionable.  There  must  be  a  certain  sphere  for  each 
state,  certain  bounds  within  which  its  functions  are  intended 
to  act,  for  otherwise  the  territorial  divisions  of  the  earth  would 
have  no  meaning.  In  regard  to  the  right  of  punishing  in  any 
case  outside  of  the  bounds  of  the  state  there  'may  be  rational 


§20,*  INTERNATIONAL    LAW.  35 

doubts.  Admitting,  as  we  are  very  ready  to  do,  that  this  is 
one  of  the  powers  of  the  state  over  its  subjects,  we  can  by  no 
means  infer  that  the  state  may  punish  those  who  are  not  its 
subjects,  but  its  equals.  And  yet,  practically,  it  is  impossible 
to  separate  that  moral  indignation  which  expresses  itself  in 
punishment  from  the  spirit  of  self-redress  for  wrongs.  As  for 
a  state's  having  the  vocation,  to  go  forth,  beating  down  wicked 
ness,  like  Hercules,  all  over  the  world,  it  is  enough  to  say,  that 
such  a  principle,  if  carried  out,  would  destroy  the  independence 
of  states,  justify  the  nations  in  taking  sides  in  regard  to  all  na 
tional  acts,  and  lead  to  universal  war.  And  yet  extreme  cases 
of  outrage  may  be  conceived  of,  where  a  burning  desire  to  help 
the  weak  abroad,  or  to  punish  the  oppressor,  ought  hardly  to 
be  disobeyed. 

§  20,  5.. 

The  inquiry  whether  a  state  has  a  right  to  punish  beyond  its 
own  limits,  leads  us  to  the  more  general  and  practi-  Relations  of  a 
cally  important  inquiry,  whether  a  state  is  bound  Jurttce. 
to  aidpther  states  in  the  maintenance  of  general  justice,  that  is.  of 
what  it  considers  to  be  justice.  The  prevalent  view  se'ems  to  be 
that,  outside  of  its  own  territory,  including  its  ships  on  the  high 
Beas,  and  beyond  its  own  relations  with  other  states,  a  state  has 
nothing  to  do  with  the  interests  of  justice  in  the  world.  Thus 
laws  of  extradition  and  private  international  law  are  thought 
to  originate  merely  in  comity.  (§§  69,  79.)  Thus,  too,  crimes 
committed  by  its  own  citizens  abroad ,  it  is  not  bound  to  notice 
after  their  return  home.  Thus,  again,  contraband  trade  is  held 
not  to  begin  within  the  neutral's  borders,  and  outside  of  them, 
as  on  the  high  seas,  concerns  the  belligerent  alone.  (§  ITS,  note.) 
And  again,  when  a  nation  commits  a  gross  crime  against  an 
other,  third  parties  are  not  generally  held  to  be  bound  to  inter 
fere.  This  is  the  most  received,  and  may  be  called  the  narrow 
and  selfish  view.  On  the  other  hand,  the  broad  view,  that  a 
state  must  aid  in  getting  justice  done  everywhere,  if  its  aid  be 
invoked,  and  even  without  that  preliminary,  would  occasion 
more  violence  than  could  thus  be  prevented.  Such  a  proceed 
ing,  too,  would  be  unjust,  as  overruling  the  judgments  of  the 
lawful  authority. 


36  INTRODUCTORY   CHAPTER.  §  20,  b 

But  there  is  a  middle  ground  on  which  the  theory  of  inter 
national  obligation  can  be  rationally  placed.  (1.)  As  already 
said  in  §  20  #,  the  interests  of  justice  require  that  the  state,  like 
every  moral  person,  shall  have  its  special  sphere  of  action,  within 
which  it  may  not  be  invaded,  except  in  extreme  and  outrageous 
cases, — which  cases  are  contemplated  by  the  actual  law  of  na 
tions.  (§§  42,  50, 112,  end.)  (2.)  Every  moral  being,  much 
more  the  state  which  is  a  member  of  a  community  of  nations, 
is  interested  in  the  prevalence  of  justice  everywhere,  and  is  the 
only  asylum  of  it  when  attacked, — is  bound  to  aid  in  maintain 
ing  justice  even  outside  of  its  own  sphere,  if  this  aid  can  be  so 
rendered  as  to  violate  no  higher  and  more  permanent  rules  of 
justice.  (3.)  In  those  cases  where  another  state  either  invokes 
or  does  not  object  to  its  aid,  a  state,  if  its  own  judgment  is 
clear  on  the  right  of  the  case,  may  lend  its  assistance.  (4.) 
When  this  aid  to  foreign  justice  can  be  rendered  within  its 
own  territory  the  obligation  is  clear,  and  thus  the  extradition 
of  criminals,  contrary  to  what  is  usually  taught,  and  to  the 
opinion  expressed  in  the  first  edition  of  this  work,  cannot, 
with  propriety,  be  refused  in  certain  cases.  (§  79.)  (5.)  Private 
international  law  must  have  its  origin  in  justice  and  not  in 
comity,  so  that  nations,  if  they  can  only  find  out  what  the 
principles  of  justice  here  are,  ought  to  adopt  them.  (6.)  Some 
questions,  as  whether  a  state  is  bound  to  aid  foreign  custom 
house  laws  by  preventing  smuggling,  and  how  far  a  neutral 
ought  to  prevent  contraband  trade  of  its  subjects  and  from  its 
ports,  are  beset  with  special  difficulties.  Of  the  latter  we  shall 
speak,  §  ITS,  note.  Of  the  former,  we  may  say  that  a  tariff 
may  be  unreasonable  and  deleterious  to  the  interests  of  other 
states  and  thus  unjust :  it  cannot  be  expected  that  aid  can  be 
given  in  such  a  case.  But  where  a  tariff  is  admitted  to  be  rea 
sonable,  since  it  is  a  necessity  and  is  rightfully  imposed,  to 
break  such  laws  by  smuggling  is  immoral,  and  a  nation  ought 
to  restrain  its  people  from  so  doing.  In  such  cases  the  neglect 
of  justice  avenges  itself  by  the  lawlessness  of  those  who  are 
trained  up  in  the  flagitious  trade.* 

*  Comp.  R.  v.  Mohl  in  a  monograph  in  his  Staatr,  Volkerr.  u.  Politik,  vol.  1. 


§21  INTERNATIONAL    LAW.  37 

§21. 

4.  Natural  justice  knows  nothing  of  a  right  of  conquest  in 
the  broad  sense  of  that  term,  that  is,  of  mere  su-  4  Tg  there  any 
perior  force,  carrying  with  it  the  license  to  appro-  rigM  of  con<iuest ' 
priate  territory,  or  destroy  national  life.  Yet,  in  fact,  nations 
accept,  if  they  do  not  justify,  such  a  right  of  conquest.  The 
reasons  for  this  are,  in  general,  derived  from  the  rule,  that  it 
is  officious  and  impossible  for  nations  to  sit  as  judges  over  each 
other's  conduct,  or,  in  other  words,  from  the  independence  of 
nations.  (§  37,  §  111.)  But  more  particularly  (1.)  in  the  exer 
cise  of  the  right  of  redress  it  may  be  necessary  to  strip  a 
wrong-doer  of  a  portion  of  his  territory ;  or  in  the  exercise  of 
the  right  of  self-protection,  and,  possibly,  of  punishment,  it 
may  be  lawful  to  deprive  him  of  the  means  of  doing  evil.  (2.) 
The  spirit  of  conquest  generally  urges  one  of  these  pleas  in  its 
defence,  over  the  validity  of  which,  as  we  have  said,  nations 
may  not  sit  in  judgment.  (3.)  Treaties  generally  perfect  the 
title  which  possession  or  conquest  begins.  (4.)  When  a  set 
tled  state  of  things  follows  a  conquest,  it  is  usually  acquiesced 
in,  because,  as  has  been  seen,  if  nations  repaired  each  other's 
wrongs,  the  way  would  be  open  for  perpetual  war.  Thus  in 
ternational  law  acknowledges  the  fact  of  conquest  after  it  Jias 
become  a  permanent  fact  in  the  world's  history,  and  in  some 
degree,  the  right  also. 

Yet  the  mere  fact  of  having  occupied  territory  or  subjuga 
ted  its  inhabitants,  can  be  no  sufficient  ground  in  justice,  even 
in  a  just  war,  for  the  exercise  of  the  right  of  conquest.  Re 
dress  and  punishment  ought  not  to  exceed  due  limits,  nor 
ought  self-protection  to  demand  an  exorbitant  amount  of  secu 
rity.  In  accordance  with  this  the  spirit  of  conquest  is  regard 
ed  by  the  nations  as  the  spirit  of  robbery,  and  as  hostility  to 
the  human  race.  This  is  shown  by  their  combinations  to  resist 
it,  as  in  the  wars  against  Louis  XIY  and  Napoleon ;  by  their 
protests  against  acquisitions  regarded  as  unjust,  and  against 
alliances  formed  for  the  injury  of  weak  states ;  by  the  pretexts 
with  which  aggressors  seek  to  shield  themselves  from  the  con 
demnation  of  the  world ;  and  by  the  occasional  consent  of  vie- 


38  INTRODUCTORY   CHAPTER.  §  22 

torious  nations  to  give  a  price  for  territory  acquired  in  war,  as 
when  the  United  States  paid  a  sum  of  money  to  Mexico  for 
lands  ceded  at  the  peace  of  1848.* 

§22. 

Moral  claims  and  duties  being  to  a  great  extent  determined 
Moral  relations  of  by  the  special  circumstances  of  the  case,  cannot 

states,    or    duties       * 

and  moral  claims,  be  so  easily  defined  and  enforced  as  rights  and 
obligations ;  and  opinions  in  regard  to  them  vary  with  the  va 
rying  moral  feelings  of  individuals,  of  countries  and  of  ages. 
Hence,  with  the  increase  of  culture,  and  the  greater  sway  of 
pure  religion,  the  influence  of  moral  ideas  over  nations  en 
larges.  No  cause  has  had  greater  efficacy  in  producing 
changes  in  international  law  than  this,  of  which  the  improve 
ments  in  the  laws  of  war,  and  in  the  treatment  of  individuals 
out  of  their  own  country,  are  good  illustrations.  The  rules 
drawn  from  this  source  are  less  capable  of  being  reduced  to  a 
theory  than  those  deducible  from  jural  relations. 

§23. 

One  or  two  recognized  branches  of  duty  between  nations 
Particular  duties,  deserve  a  brief  notice. 

1.  The  duty  of  humanity,  including  hospi 
tality.  This  duty  spends  itself  chiefly  in  the  treatment  of 
individuals,  although  suffering  nations  or  parts  of  nations 
may  also  call  for  its  exercise.  The  awakened  sentiment  of 

*  The  Abbe  de  Mably,  on  this  subject,  uses  the  following  language :  "  A  prince 
is  doubtless  in  the  right  in  conquering  a  province  which  belongs  to  him,  and  of  which 
the  restitution  is  refused.  He  can,  even,  to  punish  his  enemy  for  his  injustice  and  to 
recompense  himself  for  the  expenses  of  war  which  he  has  been  forced  to  make,  ex 
tend  his  conquests  beyond  the  country  which  he  claims  as  his  own.  But  arms,  of 
themselves,  give  no  title ;  they  suppose  an  anterior  one,  and  it  is  to  try  this  contest 
ed  right  that  the  war  is  waged.  Were  it  otherwise,  a  prince  despoiled  by  his  enemy, 
would  no  longer  have  any  right  to  the  countries  which  have  been  taken  from  him, 
and  hence  it  would  be  ridiculous  for  the  victor  to  demand  a  cession  from  him  in 
treaties  of  peace.  We  may  add  here  a  very  simple  argument ;  if  conquests  by  their 
nature  form  a  legitimate  right  of  possession  to  the  conqueror,  it  is  indifferent  wheth 
er  the  war  be  undertaken  on  just  or  unjust  grounds."  Droit  public,  vol.  I.  part  2, 
109,  ed.  of  Amsterdam  of  1777. 


§25  INTERNATIONAL    LAW.  39 

humanity  in  modern  times  is  manifested  in  a  variety  of  ways, 
as  by  efforts  to  suppress  the  slave  trade,  "by  greater  care  for 
captives,  by  protection  o£  the  inhabitants  of  a  country  from  in 
vading  armies,  by  .the  facility  of  removing  into  a  new  country, 
by  the  greater  security  of  strangers.  Formerly,  the  individual 
was  treated  as  a  part  of  the  nation  on  whom  its  wrongs  might 
be  wreaked.  Now  this  spirit  of  war  against  private  individu 
als  is  passing  away.  In  general,  any  decided  want  of  humanity 
arouses  the  indignation  even  of  third  parties,  excites  remon 
strances,  and  may  call  for  interposition.  (Comp.  §  21,  §  50.) 
But  cruelty  may  also  reach  beyond  the  sphere  of  humanity ;  it 
may  violate  right,  and  justify  self-protection  and  resistance. 

§  24. 

Comity  is  another  duty  of  nations.  To  this  source  may  be 
referred  in  part  the  privileges  conceded  to  ambas- 

2.  Comity. 

sadors,  .and  tne  preference  given  in  certain  cases 
to  fore%n  over  domestic  law  by  the  courts  of  Christendom. 
Comity,  as  generally  understood,  is  national  politeness  and 
kindness.  But  the  term  seems  to  embrace  not  only  that  kind 
ness  which  emanates  from  friendly  feeling,  but  also  those  tokens 
of  respect  which  are  due  between  nations  on  the  ground  of 
right. 

A  much  wider  sense  is  given  to  the  term  comity  by  those 
who  embrace  in  it  all  those  praiseworthy  acts  of  one  nation  to 
wards  another,  which  are  not  stricti  juris,  that  is,  all  that,  the 
refusal  or  withholding  of  which,  although  dictated  by  malevo 
lence,  is  not  an  injury,  and  so  not  a  ground  for  war.  But 
usages  originating  in  comity  may  become  rights  by  lapse  of 
'time.  (Comp.  Phillirnore,  I.  161,  and  §§  26,  28,  infra.) 

§25. 

Some  have  contended  that  there  is  a  positive  obligation  on 
nations  to  enter  into  relations  at  least  of  com 
merce,  so  that  the  refusal  thus  to  act  would  be  an 
injury,  and  possibly  a  cause  of  war.     It  might  be  said  that  dif 
ferences  of  climate,  soil,  productions,  and  acquired  skill,  enable 


40  INTRODUCTORY   CHAPTER.  §  26 

all  parts  of  the  world  to  aid  one  another,  and  that  this  clearly 
points  out  a  divine  destination  and  intention  that  they  shall  so 
act.  But  the  better  opinion  is,  that,«except  in  extreme  cases, 
— as  when  one  nation  cannot  do  without  the  productions  of 
another,  or  must  cross  its  borders  to  get  at  the  rest  of  the  world 
— this  is  only  a  duty,  an  exercise  of  a  spirit  of  goodwill,  to  be 
judged  of  by  each  state  according  to  the  light  which  it  pos 
sesses.  In  all  intercourse  the  two  parties  concerned  must  settle 
the  terms ;  how  then  can  one  force  the  other  into  a  treaty  of 
commerce,  any  more  than  one  man  force  another  into  a  con 
tract. 

But  although  writers  are  believed  to  agree  substantially  in 
this,  there  is  a  disposition  on  the  part  of  nations  to  act  as  if 
they  had  a  right  to  require  others  to  exchange -products  with 
them.  This  has  been  seen  in  the  dealings  of  later  years  with 
certain  Oriental  and  other  states.  But  might  not  one  Chris 
tian  state  with  greater  reason  force  another  to  give  up  its  pro 
tective  tariff? 

It  thus  appears  that  intercourse,  which  is  a  preliminary  to  all 
international  law,  and  the  condition,  without  which  rights  and 
obligations  would  be  mere  abstract  conceptions,  is  itself  refer 
able  to  the  class  of  duties,  and  that  the  refusal  to  allow  it  is  no 
injury.  There  is  nothing  more  strange  in  this  than  in  the  vol- 
untariness  of  all  private  contracts,  as  of  the  marriage  union, 
which  must  be  presupposed  before  any  family  rights  can  exist. 
All  that  rights  serve  for  is,  when  intercourse  is  given,  to  make 
it  jural.  Thus  we  see  again  the  voluntary  quality  of  interna 
tional  law. 

§26. 

Yattel  divides  the  law  of  nations  into  the  natural  or  neces- 
vattei'a  divisions  wry,  so  called  because  nations  are  absolutely 
of  intern,  law.  obliged  to  observe  it;  and  the  positive,  pro 
ceeding  from  the  volition  of  nations.  This  latter,  again,  is 
subdivided  into  voluntary,  conventional,  and  customary  law, 
which  are  respectively  derived  from  presumed,  expressed,  and 
tacit  consent.  Of  voluntary  law  Yattel  says,  that  it  embraces 
the  rules  drawn  from  the  principle  that  nations,  being  equal 


§27  INTERNATIONAL    LAW.  41 

and  independent,  are  obliged  to  suffer  each  other  to  do  many 
blamable  things,  presuming  or  acting  as  if  they  were  right. 
Thus  capture  in  war  is  valid,  whether  made  by  the  aggressor 
or  the  injured.  But  there  seems  to  be  no  reason  for  setting  off 
this  as  a  distinct  branch,  and  it  is  by  no  means  clearly  defined. 
Such  cases  as  Yattel  contemplates  are  to  be  referred  to  the  ob 
ligation  under  which  nations  lie  of  not  interfering  with  each 
other's  sovereignty,  and  thus  run  back  to  the  necessary  law  of 
nations. 

Dr.  Wheaton,  justly  discarding  this  subordinate  division  of 
voluntary  law,  makes  natural  law  one  s*enus,  and 

J  ,  .   .      .,  Wheaton's. 

voluntary,  another,  under  which  latter  conven 
tional  and  customary  are  included.  The  division  of  interna 
tional  law  into  primitive  and  secondary  law,  is  altogether  simi 
lar  to  this,  primitive  being  the  law  of  nature  and  secondary 
that  of  treaty  and  usage.  But  these  divisions,  although  avoid 
ing  Yattel's  error,  are  of  no  great  value.  For,  (1.)  A  require 
ment  of  natural  law  may  be  confirmed  by  voluntary,  as  by  a 
treaty:  to  which,  then,  of  the  two  does  it  belong?  (2.)  Con 
ventional  law  hitherto  includes  no  treaties  between  all  the 
Christian  states  of  the  world,  and  thus  is  rather  to  be  taken  as 
evidence  of  what  international  law  is,  than  as  a  part  of  it.  Nay, 
treaties  are  often  made  to  except  the  parties  from  the  operation 
of  a  real  or  supposed  international  rule.  (3.)  In  reality  all  in 
ternational  law  is  voluntary,  not  in  the  sense  that  it  derives  its 
sole  obligation  from  the  will  of  the  parties,  but  in  the  sense 
that  all  nations  in  a  certain  circle  agree  to  abide  by  it.  (4.)  And 
again,  all  voluntary  law  is  natural,  being  built  on  the  founda 
tion  of  the  sacredness  of  agreements. 

§27. 

Perhaps  a  division  like  the  following  may  have  something 
to  commend  it,  which  separates  the  rights  and 

,  ,.  ,  ,  .  Other  divisions. 

obligations  known  to  this  science  into,  (1.)  those 
which  are  deducible  from  natural  jus,  which  no  action  of  a 
sovereignty  began  or  can  terminate  ;  (2.)  those  deducible  from 
the  idea  of  a  state;  (3.)  those  which  are  begun  and  can  be 


42  INTRODUCTORY  CHAPTER.  §  28 

ended  by  compact,  express  or  tacit.  Another  division  still, 
which  we  have  made  already  (§  2),  follows  the  division  of  the 
three  grounds  or  reasons  for  international  rules,  namely,  jus, 
morality,  and  convenience.  The  first  class  comprehends  natu 
ral  rights  and  obligations,  which  can  be  defined  and  enforced ; 
the  second,  duties  and  moral  claims  which  cannot  be  easily  de 
fined,  and  need  compact  to  establish  them ;  and  the  third,  ar 
rangements  of  a  purely  voluntary  nature.  A  very  considerable 
part  of  international  law  is  included  under  the  second  and 
third  of  these  heads ;  a  fact  which  serves  to  show  the  highly 
positive  or  voluntary  nature  of  much  of  the  science.  Thus  ex 
territoriality,  private  international  law,  the  rules  of  respect, 
some,  at  least,  of  the  regulations  touching  ambassadors,  the  laws 
of  war  to  a  great  extent,  and,  indeed,  much  else  is  of  this  de 
scription.  These  parts  of  the  science  cannot  be  deduced  from 
a  theory,  nor  could  they  have  arisen  prior  to  a  long  experience. 

§28. 
Whether  the  free  assent  of  nations  take  the  form  of  express 


and  free  agreement  or  of  usage,  it  places  them  alike  under 

consent    alike  7       'i  v         •          '  A  • 

sources  of  law.  the  obligation  oi  contract.  Customs  within  each 
country  existed  before  statutes,  and  so  observances  come  in  im 
perceptibly  and  control  the  conduct  of  a  circle  of  nations.  A 
nation  which  grants  privileges  to  another  by  tacit  consent,  and 
then  revokes  them  without  cause,  may  commit  an  injury  just 
as  if  it  had  broken  a  treaty.  For  example,  intercourse  may 
become  a  right  by  becoming  a  fact,  and  to  end  it  would  be  a 
proof  of  a  hostile  mind. 

It  is  to  be  remarked,  also,  that  not  only  obligations  of  nat 
ural  justice  are  recognized  in  this  tacit  way,  but  duties  become 
obligations,  and  claims  or  conveniences,  allowed,  become 
rights,  just  as  by  formal  contract.  A  nation  may  grant  the 
privilege  of  transit  to  the  troops  of  another  by  treaty ;  it  has 
now  become  a  right.  The  same  thing  may  come  about  by 
custom  or  tacit  consent.  It  might  seem  as  if  nations  could 
alter  their  conduct  at  pleasure,  within  the  spheres  of  moral 
claims  and  convenience.  But  if  they  have  sanctioned  a  usage 
by  long  permission  without  protest,  they  have  laid  an  obliga- 


§30  INTERNATIONAL    LAW.  43 

tion  on  themselves,  and  cannot  alter  it.  It  may,  however,  be 
difficult  to  say  when  such  obligations  begin,  when  transit,  for 
instance,  silently  suffered,  becomes  a  kind  of  servitude  on  the 
soil.  There  is  a  difference,  also,  in  usages.  Mere  forms  of  in 
tercourse  may  have  little  binding  force,  but  principles  admitted 
in  common  in  a  silent  way,  and  giving  birth  to  common  habits, 
and  mutual  privileges  conceded  without  treaty,  appeal  to  the 
moral  sense  of  nations. 

§29. 

As  soon  as  a  nation  has  assumed  the  obligations  of  interna 
tional  law,  they  become  a  portion  of  the  law  of  Intern  law  adopt. 
the  land  to  govern  the  decisions  of  courts,  the  con-  ed  by  municiPaI- 
duct  of  the  rulers  and  that  of  the  people.  A  nation  is  bound 
to  protect  this  part  of  law  by  statute  and  penalty  as  much  as 
that  part  which  controls  the  jural  relations  or  in  other  ways 
affects  the  actions  of  individuals.  Otherwise  it  is  a  dead  let 
ter  ;  there  is  a  want  of  faith  towards  foreign  powers,  and  there 
is  danger  of  quarrel  ending  in  war.  All  Christian  states  have, 
it  is  believed,  in  this  way  sanctioned  international  law,  so  far 
as  it  seemed  to  them  necessary.  It  is,  says  Blackstone,  "  ad 
opted  in  its  full  extent  by  the  laws  of  England ;  and  when 
ever  any  question  arises  which  is  properly  subject  to  its  juris 
diction,  it  is  held  to  be  a  part  of  the  law  of  the  land."  "  As 
being  a  part  of  the  common  law  of  England,  the  law  of  nations 
is  adopted  by  our  own  law  also,  for  it  is  well  settled,  that  the 
common  law  of  England,  so  far  as  it  may  be  consistent  with 
the  Constitution  of  this  country,  and  remains  unaltered  by 
statute,  is  an  essential  part  of  American  jurisprudence."  *  Parts 
of  it,  moreover,  have  received  an  express  sanction  from  the 
Constitution  and  Statutes  of  the  United  States. 

§30. 

The  helps  in  ascertaining  what  international  law  is,  or  has 
been,  may  be  derived  principally  from  the  follow-  Aids  for  knowing 

'  x        «/  vfhat  intern,  law 

ing  documents : —  is. 

*  1  Kent,  Lect.  1. 


4A  INTRODUCTORY   CHAPTER.  §  31 

1.  The  sea  laws  of  various  ports  or  districts,  winch  had  a 
commercial  importance  in  mediaeval  Europe. 

2.  The  treaties  in  which  a  large  number  of  important  na 
tions  have  had  a  part,  as  the  treaty  of  Westphalia,  the  Con 
gress   of  Yienna,  and  the  recent  treaty  of  Paris,  in   1856. 
Other  political  treaties  are   evidences   of  an  opinion   enter 
tained  by  the  parties  in  regard  to  certain  provisions  of  the  law 
of  nations ;  and  that,  whether  they  sanction  these  provisions 
or  suspend  their  operation.     Much  the  same  thing  may  be  said 
of  treaties  of  commerce,  which  often  touch  on  mooted  ques 
tions  of  maritime  law.     A  brief  statement  of  the  leading  fea 
tures  of  the  principal  political  treaties  since  the  reformation 
constitutes  the  second  appendix  to  this  volume. 

3.  Judicial  decisions,  which  often  set  forth  in  the  clearest 
manner  the  state  of  the  law  as  it  is  understood  by  the  ablest 
legal  authorities  of  a  particular  country,  and  which,  although 
not  always  followed,  command  respect  in  other  countries.    The 
decisions  of  the  English  courts,  especially  of  the  Admiralty 
under  Sir  William   Scott  (Lord   Stowell),  although  taking  a 
view  of  neutral  rights  on  the  sea  which  is  now  becoming  ob 
solete,  are  distinguished  for  their  ability,  and  have  had  a  great 
influence  on  opinion  in  this  country.     Many  decisions  of  the 
Supreme  Court  of  the  United  States  involve  points  of  interna 
tional  law, — a  court,  before  which,  originally,  "  all  cases  touch 
ing  ambassadors,  other  public  ministers  and  consuls,"  and,  ul 
timately,  various  questions  affecting  treaties  and  relations  with 
foreign  countries  may  be  brought. 

4.  State  papers  on  controverted  points,  such  as  those  writ 
ten  in  our  own  country  by  Jefferson,  Hamilton,  Webster,  and 
Marcy. 

5.  Treatises  on  this  branch  of  science,  or  on  some  title  of 
it,  some  of  which  with  reason,  or  by  accident,  have  acquired  a 
standing  above  others.     A  list  of  the  most  eminent  text-wri 
ters  may  be  found  in  the  first  appendix  to  this  work. 

§31. 

In  tracing  the  progress  of  international  law,  that  is  of  views 
or  theories  concerning  it,  We  may  notice  several  stages,  more 


§31  INTERNATIONAL    LAW.  45 

or  less  clearly  defined,  through  which  it  has  passed.  1.  Among 
the  ancients  we  have  a  recognition  of  right  and  wrong  in  the 
intercourse  of  states  together  with  some  rules  regulating  inter 
course  and  some  rules  of  humanity  in  war — placed  chiefly  un 
der  the  sanction  of  religion — but  no  separation  of  this  branch 
of  law  from  the  rest,  as  a  distinct  department.  (§  8.)  This 
period  continued  until  after  the  revival  of  learning.  In  the 
middle  age  the  science  was  still  undeveloped,  but  religious  in 
stitutions  and  antipathies  modified  the  practice  of  Christian 
states.  (§  8.)  During  the  revival  of  learning,  a  spirit  arose 
in  Italy,  which  made  light  of  all  obligations  between  states, 
and  almost  deified  successful  wickedness.  Soon  after  this,  we 
perceive  that  the  forerunners  of  Grotius,  as  Suarez,  Ayala, 
and  above  all,  Albericus  Gentilis,  are  aware  that  a  system  of 
international  law  ought  to  be  evolved,  and  are  working  out 
particular  titles  of  it.  (Append.  I.) 

2.  With  Grotius  a  new  era  begins.    (§  11,  Append.  I.)  His 
great  aim  was  practical,  not  scientific, — it  was  to  bring  the 
practice  of  nations,  especially  in  war,  into  conformity  with 
justice.    He  helcl  firmly  to  a  system  of  natural  justice  between 
states,  without,  however,  very  accurately  defining  it.     To  posi 
tive  law,  also,  originated  by  states,  he  conceded  an  obligatory 
force,  unless  it  contravened  this  justice  of  nature.     In  setting 
forth  his  views,  he  adduces  in  rich  abundance  the  opinions  of 
the  ancients,  and  illustrations  from  Greek  and  Roman  history. 
The  nobleness  of  his  aim,  and  his  claim  to  respect  as  the  fa 
ther  of  the  science,  have  given  to  the  treatise  de  Jure  Belli 
et  Pads  an  enduring  influence. 

3.  After  Grotius  there  appear  two  tendencies.     One  is  to 
disregard  all  that  is  positive  and  actual  in  the  arrangements 
between  nations,  and  to  construct  a  system  on  the  principles 
of  natural  law ;  in  which  way  a  law  for  states,  differing  from 
ethics  and  natural  justice,  is  in  fact  denied.     This  tendency  is 
represented  by  Puffendorf.     (§  12.)     The  other  tendency  was 
a  reaction  against  this  writer,  and  satisfied  itself  with  repre 
senting  the  actual  state  of  international  law,  as  it  exists  by 
usage  and  treaty,  without  setting  up  or  recognizing  a  standard 


46  INTRODUCTORY   CHAPTER.  §32 

of  natural  justice  by  its  side.  Bynkershoek  and  Moser  (see 
Append.  I),  with  Martens  and  others  in  more  recent  times, 
are  examples  here.  Many  writers  however,  treading  in  the 
steps  of  Grotius,  regard  natural  justice  as  a  source  of  right, 
with  which  the  practice  of  states  must  be  compared  and  brought 
into  conformity,  and  which  may  not  be  neglected  in  a  scientific 
system. 

§32. 

There  has  been  a  general  progress  in  the  views  of  text-wri 
ters  since  the  age  of  Grotius,  and  a  substantial  agreement  be 
tween  those  of  all  nationalities  at  the  same  era.  And  yet 
minor  differences  are  very  observable.  Some  of  the  most 
striking  of  these  are  the  differences  between  the  English  and 
the  Continental  doctrine,  arising  from  the  insular  position  of 
Great  Britain,  from  her  commercial  interests,  and  her  power 
on  the  sea.  Thus  we  find  her  behind  the  Continent  in  respect 
ing  the  sanctity  of  ambassadors  until  into  the  eighteenth  cen 
tury.  (§  92,  e.)  Thus  also  while  her  practice  in  land  wars 
has  been  humane,  her  sea-rules  and  the  decisions  of  her  courts 
have  in  several  ways  borne  hardly  upon  neutrals.  It  is  worthy 
of  notice  that  our  courts  have  followed  English  precedents,  while 
our  Government,  as  that  of  a  nation  generally  neutral,  has  for 
the  most  part  leaned  in  its  doctrines  and  treaties  towards  Con 
tinental  views. 

§33. 

Hitherto,  as  may  be  gathered  from  what  has  just  been  said, 
there  is  something  of  that  same  uncertainty  and  want  of  author 
ity  to  be  discovered  in  international  law,  which  attends  on 
other  political  and  jural  sciences.  This  is  due  to  causes  al 
ready  noticed ;  (1.)  to  the  changes  in  the  science  growing  out 
of  changes  in  the  intellectual  and  moral  culture  of  successive 
generations,  and  (2.)  to  the  fact  that  states,  according  to  their 
temporary  or  their  permanent  interests,  have  set  up  or  followed 
different  rules  of  action. 

Whether  anything  can  be  done,  by  means  of  an  interna 
tional  code,  to  bring  more  certainty  and  precision  into  the  sci 
ence  will  be  considered  in  the  sequel.  (§  203.) 


§34  INTERNATIONAL   LAW-  4.7 

§34. 

In  every  branch  of  knowledge,  the  history  of  the  brancn 
is  an  important  auxiliary  to  its  scientific  treat- 

,      .  History  of  intern. 

ment.  From  the  changes  and  improvements  law,  its  import- 
in  the  law  of  nations,  it  is  evident  that  the 
history  of  this  science — both  the  history  of  opinion  and  of 
practice, — is  deserving  of  especial  attention.  It  is  a  lead 
ing  chapter  in  the  history  of  civilization.  It  furnishes 
valuable  hints  for  the  future.  Notwithstanding  its  dark  pas 
sages,  it  is  calculated  to  animate  the  friends  of  justice  and  hu 
manity.  It  explains  the  present  state  of  the  science  and  indi 
cates  the  obstacles  which  have  retarded  its  advance.  Hence 
the  value  of  such  works  as  Laurent's  "  Histoire  du  Droit  des 
Gens,"  which  in  three  volumes  embraces  the  East  and  the  clas 
sical  nations  of  antiquity ;  Ward's  "  Enquiry,"  embracing  the 
period  from  the  time  of  the  Greeks  and  Romans  to  the  age  of 
Grotius ;  and  Wheaton's  history,  which  in  a  sense  continues 
Ward's  work  down  to  the  peace  of  Washington  in  1842,  is 
surpassed  by  that  of  few  systematic  treatises.  Histories  of 
treaties  also  are  of  great  importance,  as  aids  in  understand 
ing  the  treaties  themselves,  which  are  a  principal  source  of 
international  law. 

It  will  be  one  of  our  primary  aims  in  this  work,  as  far  as 
our  narrow  limits  permit,  to  append  historical  illustrations  to 
the  leading  titles,  in  the  hope  of  exhibiting  the  progressive 
character  of  the  science,  and  of  conferring  a  benefit  on  the 
student  of  history.  It  ought  however  to  be  remarked  that 
historical  precedents  must  be  used  with  caution.  History 
tells  of  crimes  against  the  law  of  nations,  as  well  as  of  its 
construction  and  its  observance,  of  old  usages  or  principles 
given  up  and  new  ones  adopted.  There  is  no  value  in  the 
mere  historical  facts,  apart  from  the  reasons  or  pretexts  for 
them,  and  from  their  bearings  on  the  spread  of  justice  and  the 
sense  of  human  brotherhood  in  the  world. 


48  INTRODUCTORY  CHAPTER.  §35 

§35. 

A  method  which  aims  to  be  practically  useful  in  inter- 
Method  pursued  national  law,  must  take  notice  of  the  great  im 
portance  which  questions  pertaining  to  a  state  of 
war  have  in  that  science.  In  both  peace  and  war  the  essential 
qualities  of  states, — their  sovereignty  and  the  like — must  be 
exercised ;  but  war  suspends  the  operations  of  certain  rights, 
and  calls  into  activity  certain  others.  Then  again,  in  peace 
every  state  sustains  a  similar  relation  towards  every  other ;  but 
in  war  a  belligerent  state  has  one  relation  to  its  enemy,  and 
another  to  all  states  besides  ;  or,  in  other  words,  the  rights  and 
obligations  of  non-belligerents  or  neutrals  now  begin  to  exist. 
"We  have,  then,  the  general  faculties  or  powers  of  states,  their 
relations  of  peace,  and  their  relations  in  or  owing  to  war.  In 
the  method  here  pursued,  these  general  faculties  or  essential 
powers  of  states,  instead  of  forming  a  distinct  division  by 
themselves,  constitute  together  with  the  rights  and  moral 
claims,  the  obligations  and  duties,  which  have  their  opera 
tion  especially  in  a  state  of  peace,  the  first  part  of  the  science. 
Then  follows  the  second  part,  having  to  do  with  a  state  of 
war.  Our  first  part  consists  of  the  following  chapters :  the 
first  treating  of  the  rights  and  obligations  of  states  as  inde 
pendent  sovereignties ;  the  second,  of  the  right  of  property,  and 
rights  over  territory  belonging  to  states ;  the  third,  of  the  rights 
and  duties  of  intercourse  between  nations,  with  the  relations 
of  foreigners  within  the  territory  to  the  state ;  the  fourth,  of  the 
forms  and  agents  of  intercourse  between  the  states  themselves ; 
the  fifth,  of  the  right  of  contract,  or  of  treaties.  The  second 
part,  treating  of  the  relations  in  a  state  of  war,  consists  of  two 
principal  chapters,  in  the  first  of  which  the  state  of  war,  as 
affecting  the  belligerents  themselves  is  considered  ;  and  in  the 
second,  the  state  of  war  as  bearing  on  the  rights  and  obliga 
tions  of  neutrals. 


P  A  K  T      I. 


THE    ESSENTIAL    POWERS    OF    STATES,    AND    THEIR    RIGHTS    AND 
OBLIGATIONS    ESPECIALLY    IN    A    STATE    OF    PEACE. 


CHAPTEE  I. 

BIGHTS  OP  STATES  AS  INDEPENDENT  SOVEREIGNTIES. — CORRESPONDING 
OBLIGATION  OF  NON-INTERFERENCE  AND  EXCEPTIONS  TO  IT  CLAIMED 
OR  ADMITTED  IN  THE  PRACTICE  OF  NATIONS. 

§36. 

A  STATE  is  a  community  of  persons  living  within  certain 
limits  of  territory,  under  a  permanent  organiza- 

,.  i.   1       •         1  *?  *  •  A  state  what? 

tion,  wnicn  aims  to  secure  the  prevalence  01  jus 
tice  by  self-imposed  law.     The  organ  of  the  state  by  which  its 
relations  with  other  states  are  managed  is  the  government. 

A  body  of  pirates  may  be  organized  under  law,  but  is  no 
state,  being  associated  for  temporary  purposes. 

T    '        .      °  J     r      ±  9    Pirates  no  -state. 

and  designing  to  act  unjustly  by  its  very  exist 
ence.  A  state  might  arise  out  of  a  nest  of  pirates,  but  would 
not  begin  to  be  a  state  until  it  laid  aside  its  piratical  character. 
Thus  it  has  been  doubted  whether  the  Barbary  powers  were 
anything  more  than  associations  of  pirates.  But  having  grown 
in  the  course  of  time  more  just  and  civilized,  they  are  now 
taken  into  the  community  of  nations.*  Those  pirates  of  Cili- 
cia  and  Isauria,  on  the  other  hand,  whose  powerful  confederacy 
Pompey  broke  up,  clearly  formed  no  state,  their  settlements 
being  strongholds  contrived  to  secure  their  families  and  their 
plunder. 

*  Comp.  Bynkershoek  Qusest.  juris  public!,  I.  §  17. 
4 


50  RIGHTS    OF   STATES  §  37 

§37. 

From  the  nature  and  destination  of  a  state,  it  must  in  a 
Essential  attri-  sense  be  as  truly  separate  from  the  rest  of  the 

butes  or  rights  of  ,11  •   L. 

&  state.  world,  as  if  it  were  the  only  state  in  existence. 

It  must  have  an  exclusive  right  to  impose  laws  within  its  own 
territory,  the  sole  regulation  in  general  of  its  subjects,  the  sole 
determining  power  in  regard  to  the  forms  of  its  organization. 
No  reason  can  be  assigned  why  in  a  group  of  states  one  should 
have  a  right  to  interfere  in  the  legislation  or  administration  of 
the  rest,  which  would  not  give  each  of  them  the  same  right  in 
turn.  JSror  can  any  reason  be  found  why  one  state  tmght  to 
have  more  rights  or  different  rights  than  any  other.  We  find 
it  necessary  for  the  conception  of  states,  and  for  their  occupy 
ing  the  sphere  which  the  Author  of  society  has  marked  out  for 
them,  to  predicate  of  them  sovereignty,  independence,  and  the 
equality  of  each  with  the  rest.  And  these  its  attributes  or 
rights  each  has  a  right  to  preserve ;  in  other  words,  to  main 
tain  its  state  existence.  These  three  attributes  cannot  exist 
apart,  and  perhaps  the  single  conception  of  sovereignty,  or  of 
self-protection,  may  include  them  all.  (§  17.) 

By  sovereignty  we  intend  the  uncontrolled  exclusive  exer 
cise  of  the  powers  of  the  state  ;  that  is,  both  of  the  power  of 
entering  into  relations  with  other  states,  and  of  the  power  of 
governing  its  own  subjects.  This  poster  is  supreme  within  a 
certain  territory,  and  supreme  over  its  own  subjects  wherever 
•  no  other  sovereignty  has  jurisdiction. 

By  independence  we  intend  to  set  forth  the  negative  side 
of  sovereignty,  that  is,  to  deny  that  any  other  state  has  any 
right  to  interfere  with  the  exercise  of  a  state's  rights  and  sov 
ereign  powers.  Thus  a  state  may  make  treaties,  political  or 
commercial,  or  may  make  war,  or  change  its  laws,  executive 
officers,  or  form  of  government,  or  by  a  just  policy  add  to  its 
resources,  so  as  to  become  richer  and  stronger  than  other  states, 
or  plant  colonies  or  acquire  territory,  or  become  consolidated 
with  other  states,  while  no  other  state  shall  have  any  just  cause 
to  impede  or  interfere  with  its  unfettered  action. 

By  equality  is  not  meant  equality  of  honor  or  respect,  01' 


§37  AS    SOVEREIGNTIES.  51 

equality  of  rank  according  to  the  etiquette  of  courts,  or  the 
right  to  have  the  same  commercial  or  political  privileges  which 
have  been  granted  to  other  stateSj  but  simply  equality  of  state 
rights.,  that  is,  an  equal  degree  of  sovereignty  and  the  posses 
sion  of  all  the  same  rights  which  other  states  exercise.  This  is, 
perhaps,  simply  the  exhibition  of  the  quality  of  state  sover 
eignty  in  a  different  light.  States  which  are  truly  sovereign 
are  necessarily  equal  in  rights,  since  the  quality  of  full  sover 
eignty  has  no  degrees,  and  the  state,  as  such,  has  certain  rights 
from  its  very  existence. 

It  is  scarcely  necessary  to  add,  that  difference  of  size  or  of 
power  neither  adds  to  or  subtracts  from  the  sovereignty  of  a 
state,  nor  affects  its  rights  in  any  particular. 

A  state,  however,  may,  by  its  free  act,  surrender  a  part  of 
these  rights,  or  it  may  give  up  its  existence  and  These  attributes 
become  merged  in  another  organization.  The  iSay^h0ieaido?81fn 
partial  surrender  occurs  sometimes  in  confedera-  p 
tions.  The  states  composing  such  confederation  yc< 
may  come  together  on  a  variety  of  conditions,  most  of  which 
imply  a  surrender  of  sovereignty  and  independence  in  some 
degree,  and  therefore  the  discontinuance  of  their  existence  as 
states,  in  the  highest  sense  of  the  word.  Some  leagues  take 
away  from  their  members  the  right  of  separate  peace  and  war, 
and  perhaps  add  to  this  a  central  board  for  the  adjustment  of 
disputes.  Others  aim  at  a  closer  bond  between  their  members, 
and  confer  all  power,  in  foreign  relations,  as  well  as  various 
other  prerogatives,  upon  a  central  legislature  and  administra 
tion  created  by  the  league.  Others,  again,  aim  to  secure  a 
very  loose  kind  of  union, — one  which  allows  its  members  to 
make  political  leagues  with  foreign  states,  and  to  make  war 
and  peace  separately,  but  has  a  common  head  and  a  court  for 
the  settlement  of  certain  disputed  claims.  On  types  like  these 
respectively  the  Achaean  League,  our  Union,  and  the  German 
Confederation  in  its  more  modern  form,  have  been  constructed. 

A  state  which  is  under  the  protection  of  another  may  be 
sovereign  in  some  respects,  but  not  absolutely  sov-  or  by  protected 
ereign.  Such  was  the  republic  of  Cracow,  while  it  81 


52  RIGHTS    OF   STATES 

lasted ;  such  have  been  the  Ionian  islands,  under  English  protec 
tion  ;  Moldavia  and  Wallachia  under  that  of  Turkey,  with  the 
guaranty  of  the  great  European  powers ;  Servia  and  Egypt 
under  Turkey,  with  a  different  dependence;  Monaco  under 
Sardinia.* 

For  the  purposes  of  international  law  that  state  only  can 
sovereignty  in  in-  ^e  regarded  as  sovereign,  which  has  retained  its 
tern,  law  what?  p0wer  to  enter  into  all  relations  with  foreign 
states,  whatever  limitations  it  may  impose  on  itself  in  other 
respects.  Thus  the  states  of  this  Union  in  the  view  of  our  sci 
ence  are  not  sovereign,  for  they  cannot  exercise  the  treaty- 
making  power,  nor  that  of  making  war  and  peace,  nor  that  of 
sending  ambassadors  to  foreign  courts.  They  can  only  exer 
cise  towards  foreign  nations  those  private  rights  which  may 
pertain  to  any  individual  or  association.  It  is  to  be  observed, 
however,  that  between  states  of  qualified  sovereignty  the  law 
of  nations  has  application,  so  far  forth  as  it  is  not  shut  out  by 
restrictions  upon  their  power. 

In  a  state  which  is  formed  by  a  union  of  states,  there  is  no 
doubt  that  the  central  government  is  responsible  for  the  acts 
of  bodies  which  have  no  existence  in  the  view  of  international 
law.  There  is  a  weak  point  in  our  Constitution  in  this  respect, 
for  the  responsibility  must  be  borne  by  the  central  government, 
but  the  evil  cannot  always  be  abated.  Comp.  Phillimore,  1, 
143. 

§38. 

A  state  is  a  moral  person,  capable  of  obligations  as  well  as 
A  state's  obiiga-  rights.  These  relations  continue  after  it  has 
IdTy  Tc^gelf  passed  through  a  change  of  constitution,  for  not- 
govemment.  withstanding  the  change  the  state  may  still  pre 
serve  its  attributes  and  functions.  No  act  of  its  own  can  an 
nihilate  an  obligation  to  another  state;  and  its  rights  still 
continue,  unless  its  former  constitution  of  government  was  the 
condition  on  which  the  obligations  of  other  states  towards  it 
were  founded.  The  general  rule  then,  as  all  admit,  is,  that 

*  Comp,  Wheaton,  El.  I.  2,  pp.  70,  71. 


§38  AS    SOVEREIGNTIES.  53 

rights  and  obligations  survive  a  change  of  government  or  a 
revolution.  So  when  a  nation  separates  into  parts,  or  unites 
with  another  state  to  form  a  new  whole,  it  cannot  even  by  such 
a  process,  which  destroys  or  modifies  its  existence,  divest  itself 
of  its  obligations.  Thus  debts  due  to  foreigners  outlast  all  such 
mutations,  and  not  to  provide  for  their  payment  would  be  a 
violation  of  right.  When  at  the  formation  of  the  Federal 
Constitution  the  States'  debts  were  assumed,  and  when  at  the 
separation  of  Norway  from  Denmark  the  old  debt  of  the  uni 
ted  countries  was  equitably  divided,  these  Avere  acts  of  simple 
justice  and  good  faith.  It  may  happen,  however,  that  a  union 
or  division  of  states  renders  a  past  obligation  of  treaty  impos 
sible,  or  inconsistent  with  present  relations.  Thus  suppose 
that  Scotland  before  its  union  with  England  had  engaged  to 
furnish  France  with  a  contingent  of  troops.  This  engagement 
would  hardly  be  thought  binding  after  the  union ;  much  less 
would  one  be  binding,  which  contemplated  an  alliance  against 
the  very  country  with  which  a  union  now  subsisted.  It  may 
be  said,  indeed,  that  the  prior  engagement  forbade  the  forming 
of  a  new  engagement  inconsistent  with  it.  This  is,  indeed,  a 
rule  of  right,  but  not  a  rule  which  is  valid  against  important 
state  necessity.  There  is  another  extreme -case,  again,  where 
a  change  of  government  may  dissolve  prior  obligations.  It  is 
where  a  despotical  or  usurping  government  has  contracted 
debts  or  made  treaties  against  a  nation  attempting  to  recover 
its  liberties.  The  government  is  de facto  in  possession  of  au 
thority,  and  thus  its  acts  are  lawful ;  nevertheless  obligations 
entered  into  to  subjugate  the  people  must  be  regarded  in  this 
extreme  case  as  pertaining  to*  the  government  alone,  and  not 
as  resting  on  the  people.  (Comp.  §  145.)* 

*  There  is  a  distinction  between  the  sovereignty  of  a  state  and  that  of  a  prince. 
The  latter  is  only  representative, — a  mode  of  exercising  the  power  of  the  former.  If 
now  the  prince  is  only  in  form,  and  not  really,  the  representative  of  the  state,  his  acts 
in  extreme  cases  can  be  repudiated. 


54  RIGHTS    OF   STATES  §39 

§39.     - 

A  state  may  sustain  relations  to  other  states,  and  perform 
Aiiform8ofgov.  its  offices  generally  under  any  form  of  govern. 
SiSei^theiyJof  ment.  The  law  of  nations  preserves  an  entire 
indifference  to  constitutions,  so  long  as  they  do 
not  prevent  fulfilment  of  obligations.  Every  state  is.  in  its  eye 
legitimate.  And  in  matter  of  fact  the  countries  which  profess 
to  be  bound  by  the  Christian  or  European  law  of  nations,  dif 
fer  exceedingly  from  one  another  in  their  constitutions,  which 
contain  specimens  of  absolute  and  constitutional  hereditary 
monarchy,  of  confederated  democracies,  and  of  an  elective  ec 
clesiastical  principality. 

§40. 

Hence  it  follows  that  if  a  state  has  altered  its  form  of  gov- 
intern.  law  knows  ernment,  or  by  some  revolution,  peaceable  or  vio- 

only  governments    ,  ,  ™         ,          ...  IT. 

de  facto.  lent,  has  suffered  a  disruption,  or  has  become  uni 

ted  with  another,  all  these  things  are  beyond  the  province  of 
international  law,  whose  only  inquiry  is,  whether  a  certain 
community  or  organization  is  in  matter  of  fact  a  separate  in 
dependent  existence,  discharging  the  functions  of  a  state,  and 
able  to  take  upon  itself  state  responsibilities.  The  question 
of  a  state's  right  to  exist  is  an  internal  one,  to  be  decided  by 
those  within  its  borders  who  belong  to  its  organization.  To 
bring  the  question  before  external  powers,  not  only  destroys 
sovereignty,  but  must  either  produce  perpetual  war,  or  bring 
on  the  despotism  of  some  one  strong  nation  or  strong  confeder 
acy  of  nations,  requiring  all  others  to  conform  their  constitu 
tions  to  the  will  of  these  tyrants.  Moreover,  it  is  a  question 
outside  of  the  law  of  nations,  which  presupposes  the  fact  that 
nations  exist  and  have  rights,  and  therefore  cannot  first  inquire 
into  their  right  to  exist.  On  the  other  hand,  the  fact  of  the 
existence  of  a  state  is  in  general  an  open  one,  easy  to  be  judged 
of,  one  which  involves  no  decision  in  regard  to  the  advantages 
of  one  form  of  government  over  another,  and  the  only  fact 
which  nations  need  to  know,  in  order  that  they  may  enter  into 
and  fulfil  reciprocal  obligations. 


§40  AS    SOVEREIGNTIES.  55 

With  these  principles  the  practice  of  nations  on  the  whole, 
and  in  the  long  run,  agrees.  All  in  the  end  acknowledge  the 
government  de facto.  Of  course,  nations  which  dread  revolu 
tion  will  be  more  slow  to  allow  the  title  of  a  revolutionary 
government,  or  of  one  where  a  family  of  princes  of  the  same 
blood,  or  wiio  have  been  long  allies,  are  driven  from  the  throne ; 
but  they  must  submit  at  last  to  the  inexorable  facts  of  divine 
Providence  and  history.  And  if  this  rule  could  be  overthrown, 
if  a  nation  or  set  of  nations  should  act  on  the  plan  of  withhold 
ing  their  sanction  from  new  nations  with  certain  constitutions, 
such  a  plan  would  justify  others  who  thought  differently  in  re 
fusing  to  regard  the  former  any  longer  as  legitimate  states. 

All  history  is  full  of  examples  of  such  recognitions.  Hol 
land  and  Switzerland,  long  after  their  independence  was  ac 
knowledged  in  the  diplomacy  of  most  European  states,  were 
formally  admitted  into  the  brotherhood  of  nations  at  the  era 
of  the  peace  of  "Westphalia.  The  United  States,  the  Spanish 
states  of  South  America,  the  two  French  empires,  the  kingdom 
of  Greece,  all  arose  from  revolutions,  and  have  been  acknowl 
edged  to  possess  the  full  functions  of  states.  Such,  too,  has 
been  the  case  in  regard  to  states  which  have  changed  the  suc 
cession,  as  England  in  1688,  Sweden  in  1818,  and  also  where  a 
disruption  has  taken  place,  as  that  between  Holland  and  Bel 
gium  in  1830 ;  nay,  such  iniquities  as  the  partitions  of  Poland 
have  become  facts  of  history,  into  which  the  law  of  nations 
claims  110  right  to  look. 

It  is  almost  needless  to  say  that  this  rule  cannot  have  its 
application,  as  long  as  there  is  evident  doubt  whether  a  gov 
ernment  is  a  fact.  If  the  question  is  still  one  of  armed  strife, 
as  between  a  colony  and  a  mother  country,  or  between  a  state 
and  a  revolted  portion  of  it,  to  take  the  part  of  the  colony  or 
of  the  revolted  territory  by  recognition  is  an  injury  and  may 
be  a  ground  of  war ;  but  every  nation  must  decide  for  itself 
whether  an  independent  state  be  really  established,  and  needs 
not  to  wait  until  the  party  opposing  the  revolutionary  effort  has 
accepted  the  new  order  of  things.  It  is  a  safe  rule  in  contests 


56  RIGHTS    OF    STATES.  §41 

involving  the  violent  separation  of  a  state  into  parts,  that  when 
the  mother  country,  in  the  case  of  a  colony,  or  the  leading  por 
tion  of  the  state,  in  the  case  of  disruption,  gives  up  active 
efforts  to  restore  the  old  order  of  things  by  war,  other  states 
may  regard  the  revolution  as  perfected,  and  a  new  state  as 
having  come  into  the  world. 

§41. 

No  state  is  authorized  to  render  assistance  to  provinces  or 
Assistance  to  pro-  colonies  which  are  in  revolt  against  the  establish- 

vinces,  etc.  in  re-        n  -j-,         . «     -.  .  , 

voit.  ed  government.     I  or  if  the  existence  and  sove 

reignty  of  a  state  is  once  acknowledged,  nothing  can  be  done 
to  impair  them ;  and  if  the  right  of  interference, — in  favor  of 
liberty,  for  instance, — be  once  admitted,  the  door  is  open  for 
taking  a  part  in  every  quarrel. 

On  the  other  hand,  there  is  nothing  in  the  law  of  nations 
which  forbids  one  nation  to  render  assistance  to  the  established 
government  in  such  case  of  revolt,  if  its  assistance  is  invoked. 
This  aid  is  no  interference,  and  is  given  to  keep  up  the  present 
order  of  things,  which  international  law  takes  under  its  pro 
tection.  It  may  be  said  that  this  rule,  together  with  the  un 
lawfulness  of  taking  the  side  of  a  revolutionary  party  in  an 
other  state,  must  prevent  wholesome  reforms,  that  the  parti- 
zans  of  despotism  may  thus  use  their  power  against  free  insti 
tutions,  while  the  partizans  of  the  latter  may  not  oppose  des 
potism.  That  this  effect  may  follow  is  quite  possible  ;  still  the 
rule  is  an  impartial  one,  as  it  applies  to  any  existing  state, 
whether  free  or  absolute,  to  attempts  against  existing  liberty  as 
well  as  against  existing  tyranny.  The  only  other  conceivable 
rules  of  action  for  states  are,  that  in  internal  quarrels  every 
foreign  state  may  take  which  side  it  pleases,  or  that  no  state 
may  assist  either  party.  The  former  course  of  action  will  find 
110  advocates ;  the  other,  which  the  law  of  nations  cannot  be 
expected, — for  the  present  at  least, — to  recognize,  must  indeed 
prevent  some  revolutions  from  being  undertaken,  but  cannot 
prevent  a  change  of  government  when  demanded  by  a  nation's 
united  voice. 


§42  AS   SOVEREIGNTIES.  57 

§42. 

The  rule  of  non-interference  in  the  affairs  of  other  states  is 
then  an  established  principle.    But  the  exceptions  Exceptions  to  rule 

,  .    ,  •          i  °*       non-mterfer- 

to  it  which  are  admitted,  or  which  are  claimed  to  ence. 
exist,  are  of  great  importance,  and  there  is  considerable  diffi 
culty  in  determining  what  is  lawful  interference  and  what  is 
unlawful.  For,  first,  there  may  be  interference  without  a  show 
or  pretence  of  justice.  In  the  second  place,  a  nation  which 
has  or  pretends  to  have  causes  of  war  with  another,  aids  its 
revolted  provinces  in  the  exercise  of  the  war-right  of  crippling 
its  enemy.  In  the  third  place,  there  are  instances  of  interfer 
ence  which  can  be  explained  neither  on  the  ground  of  injustice, 
nor  of  a  state  of  war,  and  which  the  usage  of  Christian  or  of 
many  Christian  states  tolerates. 

Whatever  be  the  interference,  it  can  be  justified  only  as  an 
extreme  measure,  and  on  one  of  the  two  follow-  interferencewhen 
ing  grounds.  (1.)  That  it  is  demanded  by  self-  justified> 
preservation ;  (2.)  That  some  extraordinary  state  of  things  is 
brought  about  by  the  crime  of  a  government  against  its  sub 
jects.  And  upon  these  grounds  we  must  judge,  not  only  of 
the  lawfulness  of  interference  at  any  time  pro  re  nata,  but  also 
of  the  lawfulness  of  treaties  contemplating  such  interference  in 
the  future.*  From  the  nature  of  these  grounds  it  appears  that 
they  are  more  or  less  vague  and  under  the  influence  of  subject 
ive  opinion.  The  danger  to  a  state's  existence  from  the  designs 
of  another,  or  of  others,  evidently  cannot  be  measured.  While 
on  the  one  hand  mere  suspicion,  or  calculation  of  remote  prob 
abilities,  can  be  no  justifying  cause  of  action ;  on  the  other,  it 
is  hard  to  say,  just  as  in  cases  of  individual  morality,  how 
much  evidence  is  sufficient  to  sanction  that  procedure,  which 
in  ordinary  times  is  unlawful.  Thus  much  may  be  laid  down, 
that  a  danger  resulting  from  the  healthy  and  prudent  growth  of 

*  If  the  principles  of  intervention  cannot  stand,  treaties  of  guaranty,  which  con 
template  such  intervention,  must  be  condemned  also ;  for  they  have  in  view  a  resist 
ance,  at  some  future  time,  to  the  endeavors  of  third  parties  to  conquer  or  in  some 
way  control  the  guaranteed  states  in  question.  An  agreement,  if  it  involve  an  un 
lawful  act,  or  the  prevention  of  lawful  acts  on  the  part  of  others,  is  plainly  unlawful. 


58  RIGHTS    OF   STATES  §43 

another  state  is  no  reason  for  interference  whatever,  and  that 
good  evidence  of  unjust  designs,  drawn  from  conduct,  ought  to 
be  obtained  before  any  measures  may  be  taken  to  prevent 
them. 

The  extreme  case  of  extraordinary  crimes,  committed  by  a 
government  against  its  subjects,  is  still  less  capable  of  exact 
definition.  Here,  however,  the  danger  of  erring  is  less  than 
in  the  other  instance,  because  interference  here  is  more  disin 
terested  ;  and  the  evil  results  of  a  mistake  are  less,  because 
such  cases  are  comparatively  rare. 

§43. 

Having  premised  thus  much  in  regard  to  justifying  pretexts 
for  interference,  let  us  look  now  at  the  actual  cases  in  which 
international  law  gives,  or  is  claimed  to  give  to  it  a  sanction 
We  shall  consider  first  the  balance  of  power. 

The  meaning  of  the,  balance  of  power  is  this:  that  any 
i.  interference  for  European  state  may  be  restrained  from  pursuing 
power!^"0  f  plans  of  acquisition,  or  making  preparations  look- 
To  prevent  acqui-  ing  towards  future  acquisitions,  which  are  judged 
to  be  hazardous  to  the  independence  and  national 
existence  of  its  neighbors.  In  further  explanation  of  the  sys 
tem  we  may  say,  (1.)  That  it  matters  not  whether  the  actual 
ratio  of  power  between  states  is  in  danger  of  being  disturbed 
by  unjust  or  by  just  means,  provided  only  the  means  are  poll 
tical,  not  economical  and  strictly  internal.  If,  for  instance,  the 
sovereign  of  a  powerful  state  should  in  a  just  way  seat  one  of 
his  family  on  the  throne  of  a  neighboring  state,  the  justice  of 
the  transaction  would  not  be  a  sufficient  protection  against  the 
interference  of  other  powers.  (2.)  That  acquisitions  outside  of 
Europe  have  not  hitherto  been  drawn  into  this  policy.  Eng 
land  has  by  degrees  become  a  predominant  power  in  several 
quarters  of  the  world  without  provoking  the  interference  of 
the  Continent.  The  reason  is,  that  foreign  acquisitions  affect 
the  political  balance  only  in  an  indirect  way.  (3.)  The  system 
has  been  applied  to  power  on  the  land,  and  not  much  to  power 
on  the  sea.  England  has  acquired,  undisturbed,  a  great  pre- 


§44  AS   SOVEREIGNTIES.  59 

dominance  on  the  sea,  while  the  balance  of  power  has  been  in 
full  exercise.  The  reason  is  obvious.  Power  on  the  sea  can 
not  directly  control  the  political  relations  of  Europe,  nor  de 
stroy  the  independence  «>f  states.  (4.)  The  system  has  not  yet 
been  carried  out  beyond  the  borders  of  the  European  states, 
Turkey  included.  The  reason  is,  that  the  transatlantic  states 
have  not  only  come  at  a  recent  period  into  the  European  inter 
national  system,  but  can,  as  yet,  have  no  appreciable  influence 
in  European  affairs. 

The  balance  of  power  is  a  maxim  of  self-preservation, 
which  must  naturally  arise  among  states  which  are  so  contigu 
ous  to  one  another  as  to  be  liable  to  sudden  invasions.  Sup 
pose  a  confederacy  of  states,  having  free  power  of  war  and 
peace,  and  that  the  terms  of  union  guaranteed  to  each  state  an 
independent  existence.  In  such  a  league,  if  one  strong  mem 
ber  threatened  the  existence  of  weaker  ones,  it  would  be  the 
duty  of  all  to  interfere.  Europe  resembles  such  a  confederacy, 
and  the  balance  of  power  is  the  guaranty  of  national  existence 
against  the  designs  of  states  of  the  first  rank.  Let  the  mem 
bers  of  such  a  loose  union  be  removed  many  thousand  miles 
from  one  another  by  tracts  of  ocean.  The  self-preserving  prin 
ciple  now  apprehends  no  danger,  and  a  system  of  balances  is 
useless. 

§44. 

The  maintenance  of  a  certain  balance  of  power,  as  a  fact, 
if  not  as  a  right,  characterized  the  politics  of  Historical  mustra- 
Greece.  The  Peloponnesian  war  was  really  ow-  tlons' 
ing,  says  Thucydides  (I.  23),  to  the  alarm  which  the  growth  of 
Athens  excited  in  the  confederates,  at  the  head  of  whom  was 
Sparta.  "When  at  the  end  of  that  war  Athens  was  subdued, 
Thebes  and  Corinth  desired  its  destruction  ;  but  the  Spartans 
justly  regarded  its  existence  as  necessary  in  the  politics  of 
Greece.  Subsequently,  Athens,  when  Thebes  was  beginning 
to  be  too  powerful,  went  over  to  the  side  of  Sparta,  her  old 
enemy. 

In  the  middle  ages  a  system  of  equipoise  in  Italy  wTas  put 
into  motion  by  the  Popes,  as  soon  as  the  German  emperors 


60  RIGHTS    OF   STATES  §44 

became  strong  in  the  Peninsula.  The  Pope's  policy  was  to 
have  two  Italian  interests  which  could  be  set  against  one 
another,  at  the  pleasure  of  the  Roman  See,  which  thus  secured 
its  own  safety  and  influence.  But  a  nearer  approach  to  the 
modern  balance  of  power  is  seen  in  the  Italian  affairs  conse 
quent  upon  the  claims  of  the  French  kings,  Charles  YIIL  and 
Louis  XII.  to  Naples  and  Milan,  from  1494  onward.  The 
dangers  from  the  French  invasion  under  Charles,  led  Spain, 
the  Pope  and  Yenice  to  combine  against  him.  Then,  in  1508, 
the  league  of  Cambray  united  all  the  powers  involved  in  the 
Italian  quarrels  against  Yenice  for  her  destruction.  Then,  in 
1510,  the  Pope  fearing  that  the  ruin  of  Yenice  would  leave 
Italy  exposed  to  France,  formed  the  Holy  League  to  drive  this 
latter  power  out  of  the  Peninsula.  It  must  be  confessed,  how 
ever,  that  the  league  of  Cambray  against  Yenice  was  dictated 
by  motives  much  more  unworthy  than  those  of  self-preserva 
tion,  and  had  less  to  do  with  maintaining  the  integrity  of  Italy 
than  with  rapacity  and  revenge. 

Not  long  after  this  the  Austrian  family,  in  two  lines,  held 
Spain  and  the  German  Empire  with  other  important  territorial 
possessions,  and  the  great  resources  of  these  allied  houses 
seemed  to  be  dangerous  to  the  European  system.  France 
now  was  the  weight  in  the  opposite  scale.  The  unaccom 
plished  schemes  of  king  Henry  IY.  were  carried  out  by  Riche 
lieu,  when  he  aided  the  German  protestants  and  Sweden  against 
Austria ;  and  the  peace  of  Westphalia  in  1648,  prevented, 
thenceforward,  this  state,  holding  as  it  did  the  office  of  Em 
peror  in  its  hands,  from  becoming  formidable  either  to  Europe 
or  to  Germany. 

It  wras  now  the  turn  of  France  to  feel  the  force  of  the 
balance  of  power.  The  ambition  of  Louis  XIY.  was  thought 
to  endanger  the  existence  of  other  European  states,  and  a 
universal  monarchy  seemed  to  be  at  hand.  The  coalitions  of 
nearly  all  Europe,  which  resisted  and  finally  humbled  the 
Grand  Monarch,  are  among  the  most  righteous  examples  of 
measures  for  preserving  the  balance  of  power  which  history  re 
cords.  Some  of  the  measures,  however,  which  were  adopted 


§45  AS    SOVEREIGNTIES.  61 

for  the  preservation  of  the  balance  at  this  time,  were  of  doubt 
ful  justice  and  policy.  It  was  right  to  set  bounds  to  the  am 
bition  of  Louis  XIY. ;  it  was  right,  when  his  intrigues  pro 
cured  the  nomination  of  his  grandson  to  a  throne  which  had 
been  solemnly  renounced  for  his  posterity,  to  endeavor  to  pre 
vent,  by  force  of  arms,  this  accumulation  of  power  in  the  Bour 
bon  line  ;  but  what  justice  was  there  in  the  two  partition  trea 
ties  of  1698  and  1700,  which  disposed  of  territories  apper 
taining  to  the  Spanish  Crown,  without  asking  leave  of  the 
king  or  nation ;  and  was  not  this  high-handed  measure  a  fail 
ure  in  policy,  as  calculated  to  oifend  the  pride  of  Spain  ?  Since 
the  time  when  the  balance  of  power  played  such  a  part  in  the 
days  of  Louis  and  William  of  Orange,  it  has  been  repeatedly 
acted  on,  and  may  be  said  to  be  an  established  part  of  the  in 
ternational  law  of  Europe.  The  most  memorable  instances  of 
its  application  in  recent  times,  have  been  the  interposition  of 
the  four  powers  in  1840,  which  forced  Mehemet  Ali  to  renounce 
the  provinces  of  the  Turkish  empire,  of  which  he  held  posses 
sion,  and  that  of  France  and  England  in  1854,  to  preserve  the 
integrity  of  the  same  empire  against  the  designs  of  Russia. 

§45. 

We  have  already  seen  that  where  one  nation's  aid  is  in 
voked  by  the  government  of  another  for  the  pur-  2.  interference  to 

/»         ,,.  i  -,,  T  .   ,  .      prevent      revolu- 

pose  oi  putting  down  a  revolt,  such  assistance  is  tions. 
not  opposed  by  the  law  of  nations.  Should  it  be  given  in  the 
spirit  of  hostility  to  free  institutions,  the  motive  lies  beyond 
the  ordinary  sphere  of  this  science.  But  a  part  of  the  Eu 
ropean  powers  have  attempted  to  establish  a  right  of  interfer 
ence  to  put  down  revolutionary  principles  in  that  continent, 
whether  their  aid  be  called  for  or  not.  This  principle  has  been 
avowed,  if  we  mistake  not,  only  since  the  French  revolution ; 
for  only  since  then  has  absolutism  become  conscious  of  its  dan 
gers,  and  of  the  hatred  felt  towards  it  by  multitudes  of  persons 
scattered  through  the  nations.  The  plea  is,  as  in  the  case  of 
the  balance  of  power,  one  of  self-preservation.  The  stability 
of  all  governments,  it  is  alleged,  and  of  all  institutions  BUS- 


62  RIGHTS    OF   STATES  §46 

tained  by  governments,  is  threatened  by  the  propagandists  of 
liberty,  and  even  the  dread  of  revolution  so  greatly  paralyzes 
the  energies  of  states,  that  everything  must  be  done  to  make  it 
as  remote  as  possible.  It  is  admitted  that  no  interference  un 
dertaken  for  the  direct  purpose  of  spreading  absolute  princi 
ples,  or  absolutism  itself,  or  even  for  that  of  crushing  free  prin 
ciples,  or  of  overturning  settled  governments  or  constitutions 
set  up  in  an  illegitimate  way,  is  to  be  justified ;  but  it  is  claimed 
that  revolutions  in  modern  times  have  been  sources  of  incredi 
ble  evils,  and  that  the  so  called  right  of  a  people  to  alter  its 
government  by  force,  is  calculated  to  bring  upon  Europe  eter 
nal  commotion  and  insecurity. 

§46. 

While  the  French  revolution  was  in  progress  *  some  of  the 
instHBoesofinter.  leading  powers  of  Europe  had  shown  a  dispo- 
agaeinst  f?evoiu-  sition  to  interfere  in  the  affairs  of  France,  partly 
on  the  ground  that  former  treaties  had  been  vio 
lated,  and  partly  because  the  king  and  royal  family  of  France 
were  restrained  of  their  liberty  and  treated  with  dishonor.  A 
circular  of  the  emperor  of  Germany,  of  July  6,  1791,  invited 
the  principal  powers  of  Europe  to  declare  to  the  French  nation, 
among  other  things,  that  the  sovereigns  "  would  unite  to 
avenge  any  further  offences  against  the  liberty,  the  honor  and 
safety  of  the  king  and  his  family ;  that  they  would  consider  as 
constitutional  laws  only  those  to  which  the  king  should. have 
given  his  free  assent ;  and  that  they  would  employ  every 
means  of  terminating  the  scandal  of  a  usurpation  founded  on 
rebellion,  and  of  which  the  example  was  dangerous  to  every 
government."  On  the  27th  of  August,  in  the  same  year,  the 
same  sovereign,  with  the  king  of  Prussia,  signed  a  declaration 
to  the  same  effect,  in  which  they  invited  the  monarchs  of  Eu 
rope  to  unite  with  them  in  using  "  the  most  efficacious  means 
to  put  the  king  of  France  in  a  state  to  enable  him  with  perfect 
freedom  to  lay  the  foundation  of  a  monarchical  government. 

*  Coinp.  Wheaton's  Hist.  p.  347,  et  seq.,  and  his  El.  II.  1, 102-109,  which  I  have 
freely  used. 


§46  AS    SOVEREIGNTIES.  £3 

equally  consistent  with  the  rights  of  sovereigns  and  the  welfare 
of  the  French  nation  ;  in  which  case  they  were  resolved  to  act 
promptly  and  with  necessary  forces  to  obtain  the  proposed 
common  object.  In  the  meantime  they  would  give  the  neces 
sary  orders  to  hold  their  troops  in  readiness  to  take  the  field."  * 

Louis  having  accepted  the  new  constitution  on  the  13th  of 
September,  1791,  and  announced  to  foreign  powers  his  inten 
tion  of  supporting  it,  there  was  no  pretext  of  a  restraint  upon 
the  king's  liberty  for  an  armed  intervention  in  the  affairs  of 
France.  But  unsettled  questions  in  dispute  continued,  and  at 
length,  on  the  Tth  of  April,  1792,  the  Austrian  ultimatum  de 
manded,  together  with  the  restoration  of  the  Yenaissin  to  the 
Pope,  and  of  their  possessions  and  privileges  in  Alsace  to  the 
princes  of  the  Empire,  the  re-establishment  of  the  French 
monarchy  on  the  basis  of  the  French  king's  declaration  of  the 
23d  of  June,  1789.  This  necessarily  led  to  the  decree  in  the 
national  assembly  that  France  was  in  a  state  of  war  with  Aus 
tria.  The  king  of  Prussia,  on  the  26th  of  June  of  the  same 
year,  1792,  announced  to  the  world  the  reasons  which  induced 
him,  in  conjunction  with  Austria,  to  take  up  arms  against 
France.  Among  them  we  mention  "  the  propagation  of  prin 
ciples  subversive  of  social  order,  wrhich  had  thrown  France  into 
a  state  of  confusion  ; "  and  "  the  encouragement  and  even 
official  publication  of  writings  the  most  offensive  against  the 
sacred  persons  and  lawful  authority  of  sovereigns.  To  sup 
press  anarchy  in  France  ;  to  re-establish  for  this  purpose  a  law 
ful  power  on  the  essential  basis  of  a  monarchical  form ;  and 
by  these  means  to  secure  other  governments  against  the  crimi 
nal  and  incendiary  efforts  of  madmen, — such  the  king  declared 
to  be  the  great  objects  of  himself  and  his  ally." 

The  declaration  of  Austria  drew  forth  at  once  a  counter- 
statement  from  the  national  assembly  drawn  up  by  Condorcet, 
which,  among  other  things,  claimed  for  every  nation  the  exclu 
sive  right  of  making  and  changing  its  laws ;  denied  that  France 
had  threatened  the  general  tranquillity,  seeing  she  had  re- 

*  Whoaton's  Hist.  p.  346,  seq.  The  passages  in  quotations  are  borrowed  from 
that  work  through  this  paragraph. 


64  EIGHTS    OF   STATES  §46 

nounced  all  designs  of  conquest ;  declared  that  the  avowal  of 
the  doctrine  of  the  sovereignty  of  the  people,  which  the  nation 
had  made,  could  not  be  regarded  as  disturbing  the  peace  of 
other  states ;  and  rebutted  the  charge  that  Frenchmen  had  ex 
cited  other  nations  to  insurrection ;  whilst,  on  the  other  hand, 
emigrants  from  France  had  received  aid  and  encouragement 
from  those  who  brought  these  complaints,  and  attempts  had 
been  made  to  excite  civil  war  in  France.  Such  complaints 
were  unreasonable  "  unless  it  were  lawful  to  extend  servitude 
and  unlawful  to  propagate  liberty ;  unless  everything  be  per 
mitted  against  the  people,  and  kings  alone  have  rights." 

England  could  not,  in  consistency  with  the  historical  devel 
opment  of  its  own  institutions  by  means  of  a  revolution,  adopt 
the  principles  on  which  the  continental  powers  declared  war 
against  France.  An  attitude,  however,  far  from  friendly,  was 
observed  towards  that  country,  and,  among  the  causes  of  com 
plaint,  one  was  the  encouragement  given  to  revolt  in  other 
countries,  not  only  by  emissaries  sent  to  England,  but  by  a  de 
cree  of  the  convention,  which  was  said  to  express  the  design 
of  extending  French  principles  and  of  promoting  revolutions 
in  all  countries,  even  those  which  were  neutral.  At  length,  on 
the  death  of  Louis,  in  the  beginning  of  1793,  the  French  am 
bassador  was  ordered  to  leave  the  kingdom.  A  state  of  war 
ensued,  during  which  Mr.  Pitt  declared  that  there  had  been 
no  intention,  if  the  country  had  not  been  attacked,  to  interfere 
in  the  internal  affairs  of  France.  But,  no  doubt,  the  atrocities 
in  the  summer  of  1Y93,  and  the  closing  tragedy  of  the  king's 
execution,  were  motives,  if  not  pretexts  of  hostility.  ~Nor  can 
there  be  much  doubt  that  the  interference  of  the  European 
powers,  above  spoken  of,  produced,  or  at  least  intensified,  those 
atrocities,  by  arousing  the  national  feeling  of  the  French,  by 
exciting  distrust  of  the  king's  good  faith,  and  by  making  it 
apparent  that  no  terms  could  be  kept  with  the  sovereigns. 

The  revolution  had  its  course.  The  interference  was 
Hoiy  Alliance  avenged,  and  the  parties  to  it  were  humbled. 
sept.  26, 1815.  j>uf.  a^.  length  France,  which  destroyed  the  inde 
pendence  of  half  of  Europe,  lost  its  own,  the  empire  fell,  and 


§46  AS    SOVEREIGNTIES.  65 

the  old  Bourbon  dynasty  was  restored.  During  the  occupation 
of  Paris,  consequent  on  the  battle  of  "Waterloo,  the  three  rulers 
of  Eussia,  Austria,  and  Prussia,  joined  afterwards  by  the  French 
king,  formed  the  Holy  Alliance,  which  has  been  regarded  as  a 
league  of  absolutism  against  the  rights  and  the  freedom  of  the 
nations.  This  famous  league,  however,  at  its  inception,  ap 
pears  to  have  had  no  definite  object  in  view.  It  was  a  meas 
ure  into  which  the  other  sovereigns  entered,  in  order  to  gratify 
the  emperor  Alexander,  whose  romantic  mind,  then  under  the 
influence  of  Madame  Krudener,  contemplated  a  golden  age,  in 
which  the  intercourse  of  nations  should  be  controlled  by  Chris 
tian  principles.  The  parties  to  the  Holy  Alliance  bound  them 
selves,  appealing  to  the  Holy  Trinity,  to  exercise  their  power 
according  to  the  principles  of  religion,  justice,  and  humanity ; 
to  afford  one  another  on  all  occasions  aid  and  help ;  to  treat 
their  subjects  and  soldiers  with  paternal  feeling,  and  to  regard 
their  people  as  members  of  a  great  Christian  family,  whose 
guidance  was  entrusted  to  them  by  God.* 

The  congress  of  Aix-la-Chapelle,  at  which  the  five  great 
powers  were  represented,  and  which  removed  the  congress  of  Aix- 

e  Z*     •     «  J*       <n  i     i»  «•     la-Chapelle,  Sept. 

army  01  occupation  irom  the  -b  rencn  iortresses,  el-  29,  isis. 
fected  an  alliance  almost  as  vague  as  the  Holy  Alliance,  which, 
according  to  some  of  the  parties  to  it,  was  intended  to  exercise 
a  supervisory  power  over  European  affairs,  interfering  to  pre 
vent  all  dangerous  revolutions,  especially  when  they  should: 
proceed  from  popular  movements.  They  declared,  however, 
their  intention  to  observe  scrupulously  the  law  of  nations. 
"The  sovereigns  have  regarded,"  say  they,  "as  the  funda 
mental  basis,  their  invariable  resolution  never  to  depart  either 
among  themselves  or  in  their  relations  with  other  states,  from 
the  strictest  observance  of  the  law  of  nations, — principles, 
which,  in  their  application  to  a  state  of  permanent  peace,  are 
alone  able  to  give  an  effectual  guaranty  to  the  independence 
of  each  government,  and  to  the  stability  of  their  general  asso 
ciation." 

*  The  whole  compact  is  given  by  Mr.  Manning  in  an  English  version,  pp.  82-84. 
5 


f56  RIGHTS    OF    STATES  §46 

The  unmeaning  nature  of  such  declarations  was  shown  not 
congress  of  Trop-  l°ng  afterwards  by  acts  of  interference,  underta- 
oct.  78,Li8M*cSi'id  ken  against  the  consent  of  one  European  power, 
and  certainly  not  accordant  with  a  rigorous  view 
of  the  law  of  nations.  A  feeling  of  discontent  with  the  anti-libe 
ral  movements  of  most  of  the  continental  powers  had  been  grow 
ing  in  intensity  in  many  parts  of  Europe,  when,  in  1820  and  1821, 
revolutions  broke  out  in  rapid  succession  in  Spain,  Naples,  and 
Sardinia,  and  the  constitution  of  Cadiz,  of  the  year  1812,  was 
proclaimed  in  all  the  three  kingdoms.  The  alarm  excited  by 
the  revolutionary  spirit  was  the  occasion  of  convoking  a  con 
gress  at  Troppau  in  Silesia,  in  October,  1820,  which  was  re 
moved  near  the  end  of  the  same  year  to  Laybach  in  Styria, 
and  at  which  not  only  the  five  great  powers  were  represented 
by  their  sovereigns  or  by  ambassadors,  but  the  king  of  Naples 
and  deputations  from  small  powers  appeared.  Against  the 
proposed  intervention  in  the  affairs  of  Italy  the  British  gov 
ernment  protested  in  strong  terms,  although  the  existing  min 
istry  were  not  averse  to  the  suppression  of  revolutionary  liber 
alism;  while,  on  the  other  hand,  the  French  government 
approved  openly  of  the  intervention,  in  order  to  gratify  the 
ultra-royalist  party  at  home,  but  secretly  dreaded  the  Austrian 
influence  which  such  a  measure  would  increase.  Austria,  thus 
supported,  sent  an  army  into  the  Peninsula,  overthrew  the 
revolution  almost  without  a  blow  in  the  spring  of  1821,  and 
brought  back  the  old  absolutism  in  all  its  rigor. 

The  circular  despatch  of  the  sovereigns  of  Austria,  Russia, 
and  Prussia,  justified  these  measures  by  alleging  "  that  there 
existed  a  vast  conspiracy  against  all  established  power,  and 
•  against  all  the  rights  consecrated  by  that  social  order  under 
which  Europe  had  enjoyed  so  many  centuries  of  glory  and 
happiness ;  that  they  regarded  as  disavowed  by  the  principles 
which  constitute  the  public  right  of  Europe  all  pretended  re 
form  operated  by  revolt  and  open  hostility ; "  that  they  op 
posed  a  "  fanaticism  for  innovation,  which  would  spread  the 
horror  of  universal  anarchy  over  the  civilized  world ;  that  they 
were  far  from  wishing  to  prolong  this  interference  beyond  the 


§46  AS    SOVEREIGNTIES.  67 

limits  of  strict  necessity,  and  would  ever  prescribe  to  them 
selves  the  preservation  of  the  independence  and  of  the  rights 
of  each  state."  On  the  other  hand,  the  British  government, 
while  it  acknowledged  the  right  to  interfere,  where  the  "  imme 
diate  security  or  essential  interests  "  of  one  state  are  seriously 
endangered  by  another,  denied  that  "this  right  could  receive 
a  general  and  indiscriminate  application  to  all  revolutionary 
governments."  Such  interference  was  an  exception,  and 
u  could  not,  without  the  utmost  danger,  be  incorporated  into 
the  ordinary  diplomacy  of  states,  or  into  the  institutes  of  the 
law  of  nations."* 

Soon  after  this,  in  the  middle  of  1821,  a  royalist  insurrec 
tion  occurred  in  northern  Spain,  to  which  France  CongreB8  of  Vero- 
so  far  extended  aid  as  to  allow  the  insurgents  to  Iia>  Oct>  1822' 
gather  along  the  borders,  to  retreat  in  case  of  need  across  the 
line,  and  to  make  open  preparation  of  arms  and  money  on 
French  soil.  A  congress  had  been  arranged  to  meet  at  Yero- 
na  when  that  of  Laybach  broke  up.  The  principal  measure 
here  agitated  was  armed  interference  in  the  affairs  of  Spain, 
which,  if  undertaken,  would  naturally  be  the  work  of  France. 
The  British  envoy,  the  Duke  of  Wellington,  not  only  declared 
the  refusal  of  his  government  to  participate  in  any  such  pro 
ceeding,  but  also  that  England  would  not  even  attempt  to  per 
suade  Spain  to  conform  to  the  views  of  the  congress.  The 
French  envoys,  Montmorency  and  Chateaubriand,  against  ex 
press  instruction  of  their  court,  urged  forward  the  intervention, 
which  was  supported  by  the  other  powers,  and  energetically  by 
Russia,  which  power  at  Laybach  had  hung  back  from  decisive 
movements  by  force  of  arms.  The  envoys  acted  herein  in  the 
interest  of  the  ultra-royalist  party,  which  was  thus  able  to  car 
ry  its  measures  through.  For  a  French  army  occupied  Spain, 
penetrated  as  far  as  Cadiz,  overthrew  the  constitution  of  Cadiz 
to  which  the  king  had  given  his  assent,  and  left  him  "  free," 
but  the  country  enslaved.  No  stretch  of  interference  had  gone 
so  far  as  this,  for  Spain  would  have  had  a  settled  constitutional 

*  Circular  despatch  of  the  sovereigns,  etc.,  Laybach,  May,  1821,  and  Lord  Gas- 
tlereagh's  circular  despatch  of  January  19th,  1821. 


68  RIGHTS    OF    STATES  §47 

government,  and  probably  settled  peace,  unless  the  agitators 
had  looked  for  aid  to  foreign  power. 

§47. 

The  proceedings  at  Yerona  indirectly  gave  rise  to  what  has 
3.  Monroe  doc-  been  called  the  Monroe  doctrine,*  which  met  the 
reigning  principle  of  interference  in  Europe  by  a 
similar  principle  in  the  opposite  direction.  The  history  of  this 
doctrine  is,  in  brief,  the  following.  At  Verona  the  subject  was 
agitated  of  attempting,  in  conformity  with  the  known  wishes 
of  the  absolutists  in  Spain,  to  bring  back  the  Spanish  colonies 
into  subjection  to  the  mother  country.  This  fact  having  been 
communicated  to  our  government  by  that  of  Great  Britain  in 
1823,  and  the  importance  of  some  public  protest  on  our  part 
being  insisted  upon,  President  Monroe,  in  his  annual  message, 
used  the  following  language :  "  That  we  should  consider  any 
attempt  on  the  part  (of  the  allied  powers,)  to  extend  their  sys 
tem  to  any  portion  of  this  hemisphere  as  dangerous  to  our 
peace  and  safety,"  and  again,  "  that  we  could  not  view  any  in 
terposition  for  the  purpose  of  oppressing  (governments  on  this 
side  of  the  Atlantic  whose  independence  we  had  acknowledged,) 
or  controlling  in  any  manner  their  destiny  by  any  European 
power,  in  any  other  light  than  as  a  manifestation  of  an  un 
friendly  disposition  towards,  the  United  States."  Soon  after 
wards  a  resolution  was  moved  in  Congress,  embodying  the 
same  principle,  but  was  never  called  up.  But  the  mere  dec 
laration  of  the  President,  meeting  with  the  full  sympathy  of 
England,  put  an  end  to  the  designs  to  which  the  message 
refers. 

In  another  place  of  the  same  message,  while  alluding  to  the 
question  of  boundary  on  the  Pacific  between  the  United  States 
and  Russia,  the  President  speaks  thus :  "  The  occasion  has 
been  judged  proper  for  asserting  as  a  principle,  in  which  the 
rights  and  interests  of  the  United  States  are  involved,  that  the 
American  continents,  by  the  free  and  independent  condition 

*  Comp.  especially  the  North  American  Review  for  April,  1856,  and  Mr.  CaL 
houn's  speech  in  the  Senate  on  the  proposed  occupation  of  Yucatan,  May  15,  1848. 


§47  AS    SOVEREIGNTIES.  69 

which  they  have  assumed  and  maintain,  are  henceforth  not  to 
be  considered  as  subjects  for  future  colonization  by  any  Euro 
pean  power."  "Was  it  intended  by  this  to  preclude  the  South 
American  republics,  without  their  will,  from  receiving  such  colo 
nies  within  their  borders — of  surrendering  their  territory  for  that 
purpose  ?  Such  a  thing,  probably,  was  not  thought  of.  Mr. 
Adams,  when  President  in  1825,  thus  refers  to  Mr.  Monroe's 
principle,  while  speaking  in  a  special  message  of  a  congress  at 
Panama.  "  An  agreement  between  all  the  parties  represented 
at  the  meeting,  that  each  will  guard  ty  its  own  means  against 
the  establishment  of  any  future  European  colony  within  its 
borders,  may  be  found  desirable.  This  was  more  than  two 
years  since  announced  by  my  predecessor  to  the  world,  as  a 
principle  resulting  from  the  emancipation  of  both  the  Ameri 
can  continents."  Mr.  Adams,  when  Secretary  of  State  under 
Mr.  Monroe,  originated  the  "  principle,"  and  must  have  known 
what  he  meant.  But  the  principle,  even  in  this  tame  form, 
was  repudiated  by  the  house  of  representatives,  in  a  resolution 
declaring  that  the  United  States  "  ought  not  to  become  parties" 
with  any  of  the  South  American  republics  "to  any  joint  decla 
ration  for  the  purpose  of  preventing  the  interference  of  any  of 
the  European  powers  with  their  independence  or  form  of  gov 
ernment  ;  or  to  any  compact  for  the  purpose  of  preventing  col 
onization  upon  the  continent  of  America." 

On  the  whole  then,  (1.)  the  doctrine  is  not  a  national  one. 
The  house  of  representatives,  indeed,  had  no  right  to  settle 
questions  of  policy  or  of  international  law.  But  the  Cabinet 
has  as  little.  The  opinion  of  one  part  of  the  government  neu 
tralized  that  of  another.  (2.)  The  principle  first  mentioned  of 
resisting  attempts  to  overthrow  the  liberties  of  the  Spanish 
republics,  was  one  of  most  righteous  self-defence,  and  of  vital 
importance.  And  such  it  will  probably  always  be  regarded, 
if  a  similar  juncture  should  arise.  But  the  other  principle  of 
prohibiting  European  colonization  was  vague,  and  if  intended 
to  prevent  Russia  from  stretching  her  borders  on  the  Pacific 
further  to  the  south,  went  far  beyond  any  limit  of  interference 
that  has  hitherto  been  set  up.  What  right  had  the  United 


70  RIGHTS    OF    STATES  §47 

States  to  control  Russia  in  gaining  territory  on  the  Pacific,  or 
planting  colonies  there,  when  she  had  neither  territory  nor  col 
ony  to  be  endangered,  within  thousands  of  miles  ? 

The  Monroe  doctrine  came  up  again  in  another  shape  in 
1848.  President  Polk  having  announced  that  the  government 
of  Yucatan  had  offered  the  dominion  over  that  country  to 
Great  Britain,  Spain,  and  the  United  States,  urges  on  Con 
gress  such  measures  as  may  prevent  it  from  becoming  a  colony 
and  a  part  of  the  dominions  of  any  European  power,  which 
would  be,  he  says,  in  contravention  of  the  declaration  of  Mr. 
Monroe,  and  which  must  by  no  means  be  allowed.  Mr.  Cal- 
houn,  in  his  speech  on  this  subject,  shows  that  the  case  is  very 
different  from  that  contemplated  by  Mr.  Monroe,  that  the  dec 
larations  of  the  latter  could  not  be  regarded  as  expressing  the 
settled  policy  of  this  country,  and  that  they  were  mere  decla 
rations  without  threat  of  resistance.  The  "  colonization  "  con 
templated  by  the  Monroe  doctrine  could  not  apply  to  Yucatan, 
and  the  possibility  of  England  (which  was  especially  intended) 
acquiring  power  there  was  remote.  «The  principle,  he  adds, 
"  which  lies  at  the  bottom  of  the  (President's)  recommendation 
is,  that  when  any  power  on  this  continent  becomes  involved  in 
internal  warfare,  and  the  weaker  side  chooses  to  make  applica 
tion  to  us  for  support,  we  are  bound  to  give  them  support,  for 
fear  the  offer  of  the  sovereignty  of  the  country  may  be  made  to 
some  other  power  and  accepted.  It  goes  infinitely  and  dan 
gerously  beyond  Mr.  Monroe's  declaration.  It  puts  it  in  the 
power  of  other  countries  on  this  continent  to  make  us  a  party 
to  all  their  wars." 

To  lay  down  the  principle  that  the  acquisition  of  territory 
on  this  continent,  by  any  European  power,  cannot  be  allowed 
by  the  United  States,  would  go  far  beyond  any  measures  dic 
tated  by  the  system  of  the  balance  of  power,  for  the  rule  of 
self-preservation  is  not  applicable  in  our  case :  we  fear  no 
neighbors.  To  lay  down  the  principle  that  no  political  systems 
unlike  our  own,  no  change  from  republican  forms  to  those  of 
monarchy,  can  be  endured  in  the  Americas,  would  be  a  step  in 
advance  of  the  congresses  at  Laybach  and  Yerona,  for  they  ap- 


§48  AS    SOVEREIGNTIES.  71 

prehended  destruction  to  their  political  fabrics,  and  we  do  not. 
But  to  resist  attempts  of  European  powers  to  alter  the  consti 
tutions  of  states  on  this  side  of  the  water,  is  a  wise  and  just 
opposition  to  interference.  Anything  beyond  this  justifies  the 
system  which  absolute  governments  have  initiated  for  the  sup 
pression  of  revolutions  by  main  force. 

§48. 

The  attempts  to  introduce  into  the  European  law  of  nations 
a  right  of  interference  in  the  internal  affairs  of  Result*  of  attempt 
other  states,  have  come  to  the  following  results: 


/-«   \      -n       i         i     i  .1  •  internal  affairs  of 

(1.)    Jingland  nas   constantly  protested   against  states. 

such  a  principle,  and  has  been  scrupulous  in  placing  her  inter- 

•  ventions  on  other  grounds.  When,  in  1826,  the  government 
of  that  country,  in  accordance  with  ancient  treaties,  and  on  ap 
plication,  sent  troops  to  Portugal  to  sustain  the  regency  there 
against  the  pretensions  of  Don  Miguel,  it  was  declared  that 
nothing  would  be  done  to  enforce  the  establishment  of  the  con- 

,  stitution,  but  that  others  would  be  resisted  in  their  attempts  to 
overturn  it.  At  that  time  it  was  said  by  Mr.  Canning,  in  the 
house  of  Commons,  that  France  had  given  to  Great  Britain 
cause  of  war  by  her  violation,  in  1823,  of  the  independence 
of  Spain.  (2.)  The  principle  has  been  applied  only  in  the  case 
of  weaker  nations  ;  while  the  two  French  revolutions  of  1830 
and  1848  weie  allowed  to  take  their  course,  and  the  revolu 
tionary  governments  were  soon  acknowledged.  (3.)  France 
cannot,  without  gross  inconsistency,  accede  to  this  principle. 
(4.)  The  principle,  carried  out,  must  bring  Christian  states  into 
conflict  ;  for  the  right  of  interfering  in  favor  of  liberty  can  be 
urged  even  on  the  ground  of  self-preservation,  as  well  as  that 
of  interfering  to  put  down  popular  movements  ;  and  all  free 
and  despotical  institutions  are  dangerous  to  one  another's  ex 
istence.  If  the  powers  of  Europe  had  been  equally  divided 
between  constitutionalism  and  despotism,  such  a  principle 
would  not  have  been  avowed,  for  it  might  work  both  ways. 
Its  avowal,  therefore,  can  be  ascribed  only  to  the  consciousness 
of  superior  might.  (5.)  The  interference,  as  it  cannot  prevent 


72  RIGHTS    OF   STATES  §49 

the  moral  and  intellectual  causes  of  revolution,  only  by  delay 
embitters  and  fanaticizes  its  spirit.  It  leaves  the  payment  of 
a  debt  at  compound  interest  to  posterity. 

§49. 

The  interference  of  the  five  great  powers  in  the  affairs  of 
4.  interference  in  the  Netherlands  has  some  peculiar  characteristics 

the  Belgic  revolu-  .„.  ,1         i  •         -i  111  *.• 

tion  of  1830.  of  its  own.  First,  the  kingdom  had  been  consti 
tuted  at  the  Congress  of  Vienna,  out  of  Holland,  Belgium,  and 
certain  neighboring  duchies,  as  a  kind  of  barrier  between 
France  and  Germany.  Fifteen  years  afterwards,  on  the  out 
break  of  the  July  revolution  in  France,  Belgium  separated  vio 
lently  from  the  rest  of  the  Netherlands,  and  it  became  evident 
that  two  such  heterogeneous  parts  could  not  be  welded  to 
gether.  The  king  of  the  Netherlands  invoked  the  mediation 
of  the  five  powers,  who  first  procured  an  armistice  between  the 
parties,  then  in  the  character  of  unauthorized  arbitrators  laid 
down  the  terms  of  separation,  and  finally  forced  a  compliance. 
The  views  that  governed  in  the  long  negotiations,  which  finally 
lent  the  sanction  of  Europe  to  this  divorce,  are  given  at  length 
by  Dr.  Wheaton  in  his  History  of  the  Law  of  Nations,  and  are 
a  most  instructive  chapter.  Belgium  acquired  its  independence 
with  the  rights  and  obligations  of  perpetual  neutrality ;  a 
French  prince  was  prevented  from  occupying  its  throne ;  the 
Scheldt,  with  other  streams  and  canals  common  to  Belgium 
and  Holland,  was  to  remain  free ;  Antwerp,  as  by  the  terms 
of  the  peace  of  Paris  in  1814,  was  to  be  a  port  without  fortifi 
cations,  and  the  territory  of  the  new  kingdom  was  confined 
within  narrow  bounds,  because  it  was  born  in  a  revolution. 
Thus  there  was  "  a  compromise  in  this  case  between  the  two 
principles  which  had  so  long  menaced,  by  their  apprehended 
collision,  the  established  order  and  the  general  peace  of  Eu 
rope."  Doubtless,  if  France  itself  had  not  just  before  asserted 
the  right  of  revolution,  the  interference  here  would  have  been 
directed  to  the  point  of  healing  the  schism  in  the  Netherlands 
by  main  force. 


§  50  AS    SOVEREIGNTIES.  73 

§  50. 

Interference  on  the  score  of  humanity  or  of  religion  can  be 
justified  only  by  the  extreme  circumstances  of  the  5  Interference  on 
case.  In  the  age  which  succeeded  the  reforma-  }J«  ^t^umit 
tion,  both  self-preservation  and  religious  sympa-  lty< 
thies  induced  the  Protestant  states  to  aid  one  another  against 
the  superior  might  of  the  Catholic,  and  to  aid  the  votaries  of 
their  faith  within  Catholic  countries,  in  order  to  secure  for 
them  freedom  of  worship.  Elizabeth  of  England  sent  aid  to 
the  revolted  Hollanders  on  religious  grounds,  and  Cromwell's 
threats  slackened  the  persecution  of  the  Waldenses*  by  the 
Duke  of  Savoy.  In  modern  times,  the  interference  of  Great 
Britain,  France,  and  Russia,  on  behalf  of  the  Greeks,  in  1827, 
was  avowedly  dictated  by  motives  of  humanity.  The  Greeks, 
after  a  bloody  contest,  had  so  far  achieved  their  independence, 
that  the  Sultan  could  not  reduce  them.  Accordingly  his  vas 
sal,  Mehemed  Ali,  of  Egypt,  was  allured  to  send  an  army  of 
subjugation  into  the  Morea,  and  the  atrocious  scenes  of  fanati 
cal  war  were  renewed.  The  Greeks  applied  to  France  and 
England  for  help  or  mediation.  At  length,  in  consequence  of 
the  battle  of  Navarino,  Oct.*  20th,  1827,  and  the  French  occu 
pation  of  the  Morea,  the  Peninsula  was  evacuated  by  Moham 
medan  troops,  and  finally  the  independence  of  Greece  was 
acknowledged.  Dr.  "Wheaton  says  of  these  events*  that  the 
Christian  powers  were  eminently  justified  in  their  interference 
"  to  rescue  a  whole  nation  not  merely  from  religious  persecu 
tion,  but  from  the  cruel  alternative  of  being  transported  from 
their  native  land  into  Egyptian  bondage,  or  exterminated  by 
their  merciless  oppressors.  The  rights  of  human  nature — 
wantonly  outraged  by  this  cruel  warfare — were  but  tardily  and 
imperfectly  vindicated  by  this  measure,  but  its  principle  was 
fully  justified  by  the  great  paramount  law  of  self-preservation. 
*  Whatever  a  nation  may  lawfully  defend  for  itself,  it  may  de 
fend  for  another  if  called  on  to  interpose.'  The  interference 
of  the  Christian  powers  to  put  an  end  to  this  bloody  contest, 

*  Elements,  Part  II.,  Chapter  1,  §  10. 


74  RIGHTS    OF    STATES  §  51 

might  therefore  have  been  safely  rested  on  this  ground  alone, 
without  appealing  to  the  interests  of  commerce  and  of  the  re 
pose  of  Europe,  which,  as  well  as  the  interests  of  humanity,  are 
alluded  to  in  the  treaty,  (for  the  pacification  of  Greece,  July 
6th,  1827,)  as  the  determining  motives  of  the  high  contracting 
parties." 


EQUALITY  OF  SOVEREIGN  STATES. 

§51. 

We  have  already  explained  equality  to  denote  equality  of 
rights.     All  sovereign  states  stand  on  the  same 

Equality.  ~ 

level  in  this  respect, — the  old  and  the  new,  large 
and  small,  monarchies  and  republics, — for  the  conception  of  a 
state  to  be  applied  to  all  is  the  same,  and  their  sovereignty  is 
the  same.  This,  however,  is  not  incompatible  with  special 
privileges  of  a  commercial  nature  granted  to  one  nation  before 
another,  or  to  superior  rank  in  the  ceremonial  of  courts. 

Formerly  the  most  punctilious  rules  of  etiquette  were  ob 
served  at  most  of  the*  courts  of  Europe.    Gustavus 

Rank  of  nations. 

Adolphus,  who  said  that  all  crowned  heads  were 
equal,  was  one  of  the  first  to  despise  pretensions  of  superiority. 
Rules  are  necessary  to  prevent  ambassadors  and  their  wives 
from  contending  for  precedence,  or  feeling  that  an  insult  has 
been  offered  to  them  or  their  country.  But  with  all  the  nicety 
of  court  etiquette,  such  quarrels  have  frequently  taken  place. 
Among  the  most  noted  of  these  disputes,  was  one  of  long  con 
tinuance  between  the  ambassadors  of  France  and  Spain.*  The 
place  of  France,  until  the  sixteenth  century,  according  to  the 
ceremonial  of  the  Eomish  See,  had  been  next  to  that  of  the 
German  emperor,  but,  as  Charles  Y.  was  both  emperor  and 
king  of  Spain,  his  successor  on  the  Spanish  throne  claimed 
precedence  of  other  kings,  and  thus  brought  on  a  collision. 
At  the  Council  of  Trent  the  dispute  rose  to  such  a  point 

*  See  Ward's  Hist.,  II.  272,  seq.  (Dublin  Ed.) 


§  51  AS    SOVEREIGNTIES.  75 

that  the  French  declared  that  they  would  renounce  obedi 
ence  to  the  Pope,  if  deprived  of  their  place,  and  it  was  only 
settled  by  allowing  the  Frenchman  to  continue  in  his  seat 
next  to  the  Legate  who  presided,  and  the  Spaniard  to  occupy 
a  seat  of  eminence  opposite  tp  him.  The  most  serious  out 
break,  however,  of  this  rivalry  occurred  at  London  in  1661, 
when,  according  to  the  usage  of  the  time,  the  ambassadors 
went  in  procession  to  meet  a  newly  arrived  ambassador  from 
Sweden.  The  ministers  of  both  nations  appeared  with  an 
armed  retinue.  As  the  Frenchman  attempted  to  put  his  car 
riage  next  to  that  of  the  English  king,  the  Spaniards  raised 
a  shout,  scared  the  horses,  and  occupied  the  place.  The 
French  then  fired  upon  them,  and  received  back  their  fire,  so 
that  eight  were  killed  and  forty  wounded  in  the  encounter ; 
but  the  Spaniards,  having  during  the  melee  cut  the  ham 
strings  of  the  French  horses,  were  able  to  secure  the  coveted 
precedence.  Louis  XIY.  threatened  war  for  this  ^outrage,  and 
thus  forced  the  Spaniards  into  a  declaration  that  their  ambas 
sador  should  never  be  present  at  ceremonies  where  a  contest 
for  rank  could  arise  between  them  and  the  French. 

According  to  the  old  rules  of  Europe,  the  Pope  (whom 
Protestant  nations  and  Russia  regard  as  only  an  Italian  sover 
eign)  ranked  highest  in  dignity,  the  German  emperor  next, 
monarchies  before  republics,  sovereigns  before  half-sovereigns, 
and  princes  of  inferior  name  closed  the  list.  The  following 
order  of  rank  emanated  from  the  Roman  court  in  1504 :  the 
Roman  emperor,  king  of  Rome,  king  of  France,  of  Spain,  Arra- 
gon,  Portugal,  England,  Sicily,  Scotland,  Hungary,  Navarre, 
Cyprus,  Bohemia,  Poland,  Denmark  (with  which  Sweden  and 
Norway  were  then  united),  the  Venetian  republic,  the  duke 
of  Brittany,  Burgundy,  Electors  of  Bavaria,  Saxony,  Branden 
burg,  archduke  of  Austria,  duke  of  Savoy,  grand  duke  of 
Florence,  dukes  of  Milan,  Bavaria,  Lorraine,  etc.* 

The  rules  now  acted  upon  in  regard  to  the  rank  of  differ 
ent  states  and  of  their  sovereigns  are,  according  Exi8ting  ruie3  Of 
to  Heffter,  the  following :  rank- 

*  Heffter,  §  28,  p.  49.     Comp.  Suppl.  to  Dumont  V.  202. 


76  RIGHTS  OF  STATES  AS  SOVEREIGNTIES.  §51 

1.  States  to  which,  for  themselves  or  for  their  sovereigns, 
royal  honors  pertain,  have  an  external  rank  before  those  tc 
which  these  honors  do  not  belong.     Such  honors  are  the  right 
of  sending  ambassadors  of  the  first  class,  the  use  of  the  royal 
title,  crown  and  corresponding*  arms,  and  certain  other  cere 
monial  usages.     To  this  rank  belong  emperors,  kings,  grand 
dukes,  the  elector  of  Hesse,  the  Swiss  republic,  the    United 
States  of  America,  the  German  confederation. 

2.  Among  states  of  the  same  class  entire  equality  of  rights 
obtains,  but  the  rule  of  precedence,  in  regard  to  rank,  is  settled 
by  treaty  and  usage.    Kings  and  emperors  have  a  general  equal 
ity,  as  is  indicated  by  the  fact  that  the  former  frequently  con 
nect  the  latter  title  writh  that  which  they  are  especially  known 
by.     A  precedence  is  given  to  kings  and  emperors  before  sov 
ereigns  who  have  inferior  titles,  and  before  republics,"  whose 
special  relation  of  rank  to  other  states  with  royal  honors  is  not 
definitely  fixed."  *     There  is  a  certain  order  of  the  German 
states  in  relation  to  affairs  of  the  confederation,  and  to  this 
alone.     Half-sovereign  and  protected  states  rank  after  those 
on  which  they  depend.     Treaties  by  which  one  state  concedes 
the  precedence  to  another  over  a  third,  without  its  consent,  are 
of  no  obligation  upon  the  latter,  and  may  contain  a  violation 
of  the  respect  which  is  its  due. 

The  rank  which  a  state  has  once  obtained  is  usually  not 
lost  by  a  change  of  constitution. 

The  tendency  of  things  is,  as  far  as  possible,  towards  en- 
These  distinctions  ^re  equality  of  states.  Thus  commercial  privi- 
fading  out.  leges  are  fast  disappearing,  and  new  treaties  to  a 

great  extent  concede  the  advantages  given  to  the  most  favored 
nations.  The  precedence  of  ambassadors  of  the  same  rank  is' 
determined  simply  by  length  of  residence  at  the  court.  And 
special  tokens  of  respect  to  one  nation  more  than  to  another, 
like  those  claimed  by  England  in  certain  narrow  seas,  have 
nearly  gone  out  of  use. 

*  Heffier,  §  28,  p.  60. 


CHAPTEK  II. 


TERRITORIAL  RIGHTS  OP  STATES  AND  RIGHTS  OF  PROPERTY. — STRICT 
RIGHT  RENOUNCED,  ESPECIALLY  AS  TO  THE  USE  OF  NAVIGABLE 
WATERS. 

§52. 

A  NATIOIT  is  an  organized  community  within  a  certain 
territory  f  or  in  other  words,  there  must  be  a  place  where  its 
sole  sovereignty  is  exercised.  It  may,  also,  and  Property  of  states 

•11    1~  J.          *M  VI         •      J'     «J         1  J     iQ       intern'       laW' 

will  have  property  of  its  own,  like  individuals  and  what? 
associations:  it  may  even  hold  such  property  within  the 
borders  of  other  states,  may  be  the  creditor  of  foreign  states  or 
individuals,  or,  unless  the  law  of  a  state  prohibit,  may  possess 
land  there  on  the  tenure  of  private  ownership.  Upon  the 
property  of  its  subjects,  again,  it  has  a  certain  lien,  as  appears 
from  the  power  to  lay  taexs  and  the  power  to  use  private  prop 
erty  for  public  purposse.  But  the  right  of  eminent  domain 
with  which  such  power  over  private  property  is  connected, 
does  not  imply  that  such  property  is  absolutely  under  the  con 
trol  of  the  state,  or  that  the  state  was  the  prior  owner,  and 
conveyed  it  to  the  individual  under  conditions ;  but  the  right 
is  rather  to  be  considered  as  one  of  necessity,  without  which, 
at  times,  public  affairs  could  not  move  on,  nor  the  rights  of 
many  individuals  be  protected.  Now,  although  the  relations 
of  the  state  to  its  territory,  to  its  property  and  to  the  property 
of  individuals  are  different,  yet  as  far  as  other  nations  are  con 
cerned,  they  may  all  be  included  under  the  term  property. 
"  Such  property  of  states,"  as  Heffter  well  remarks,  "has  only 
in  relation  to  other  states  the  same  character  which  property 
has,  namely,  the  character  of  exclusiveness  and  free  disposal," 
that  is,  of  pertaining  to  the  state  to  the  exclusion  of  all  other 
states,  and  of  being  disposed  of  without  restraint  on  their  part 
upon  its  will. 


- 


78  STATES  RIGHT  OF  PROPERTY  §53 

A  state's  territorial  right  gives  no  power  to  the  ruler  to 
alienate  a  part  of  the  territory  in  the  way  of  barter  or  sale, 
as  was  done  in  feudal  times.  In  other  words  the  right  is 
a  public  or  political  and  not  a  personal  one.  Nor  in  justice 
can  the  state  itself  alienate  a  portion  of  its  territory,  without 
the  consent  of  the  inhabitants  resljpig  upon  the  same,  and  if, 
in  treaties  of  cession,  this  is  done  after  conquest,  it  is  only  the 
acknowledgment  of  an  unavoidable  fact.  (Comp.  §  153,  and 
Grotius  11.  6.  §  4.) 

Property  of  a  foreign  state  or  sovereign  within  the  bounds 
of  a  state  involves  no  restriction  of  territorial  sovereignty. 
Territorial  servitudes,  as  right  of  free  harbor,  of  transit,  etc., 
may  exist,  but  are  stricti  juris,  the  presumption  being  always 
in  favor  of  sovereignty.  (Comp.  Bluntschli,  Staatsr.  1.  189.) 

§  53. 

The  territory  of  a  nation,  or  that  portion  of  the  earth  over 
Modes  of  acquir-  which  it  exercises  the  rights  of  sovereignty,  may 
mg  territory.  have  begun  to  pertain  to  it  in  a  variety  of  ways. 
It  may  have  derived  its  title  1,  from  immemorial  occupation 
of  land  which  was  before  vacant. 

2.  From  occupation  by  colonies,  or  other  incorporation  of 
land  before  occupied. 

3.  From  conquest  accepted  as  a  fact  and  at  length  ending 
•      in  prescriptive  right.  ^ 

4.  From  purchase  or  from  gift. 

Other  claims  more  doubtful  or  less  generally  acknowledged, 
have  been,  (1.)  that  of  Portugal,  derived  from  a  bull  of  pope 
Nicholas  Y.  giving  in  1454  to  Alfonso  Y.  the  empire  of 
Guinea,  and  the  exclusive  use  of  the  African  seas ;  as  also  the 
more  noted  bulls  of  Alexander  YI.  issued  in  1493  soon  after 
the  return  of  Columbus  from  his  first  voyage, — the  first  grant 
ing  to  Spain  all  lands  west  of  a  north  and  south  line  drawn  a 
hundred  leagues  west  of  the  Azores,  and  the  other  dividing 
the  occupation  of  the  seas  between  Spain  and  Portugal.  Such 
a  claim  of  course  would  be  good  only  against  those  who  admit 
ted  the  Pope's  right  thus  to  dispose  of  the  world,  which  few 


§  54  AND    RIGHTS    OVER    TERRITORY  79 

or  no  Catholic  states  would  now  admit.  (2.)  The  claim  on  the 
ground  of  discovery.  This  was  both  exceedingly  vague, — for 
how  much  extent  of  coast  or  breadth  of  interior  went  with  the 
discovery  ? — and  was  good  only  against  those  who  acknowl 
edged  such  right  of  discovery,  but  not  against  the^  natives.  Of 
the  natives,  however,  very  little  account  was  made.  Being 
heathen,  they  were  not,  in  the  age  succeeding  the  discovery  of 
America,  regarded  as  having  rights,  but  might  be  subdued  and 
stript  of  sovereignty  over  their  country  without  compunction. 
And  yet  when  the  right  to  territory  in  the  new  world  was  in 
dispute,  a  title  derived  from  them,  it  might  be,  to  soil  far  be 
yond  their  haunts,  would  perhaps  be  pleaded  against  prior  occu 
pation.  The  English  colonies,  however,  which  settled  in  this 
country,  took,  to  a  considerable  extent,  the  more  just  course  of 
paying  for  the  soil  on  which  they  established  themselves,  and 
the  United  States  have  acted  steadily  on  the  principle  of  ex 
tinguishing  the  Indian  title  by  treaty  and  the  payment  of  a 
price. 

§54. 

1.  The  territory  of  a  state  includes  all  that  portion  of  terra 
firma  which  lies   within  the  boundaries  of  the  What    is    terri. 
state,  as  well  as  the  waters,  that  is,  the  interior  tory? 

seas,  lakes  and  rivers  wholly  contained  within  the  same  lines. 
Thus  the  sea  of  Azof,  the  Volga,  Lake  Michigan,  the  Ohio, 
and  the  Sea  of  Marmora  are  exclusively  in  the  territory  re 
spectively  of  Russia,  the  United  States,  and  Turkey.  It  may 
happen  that  the  boundaries  of  a  state  are  not  continuous,  or  that 
one  part  of  it  is  separated  from  another,  as  the  Rhine-provinces 
of  Prussia  are  cut  off  by  Hesse,  etc.,  from  the  rest  of  the 
kingdom.  Or  it  may  happen  that  one  sovereignty,  or  a  por 
tion  of  it,  is  included  within  the  limits  of  another.  This  is  the 
case  more  or  less  in  Germany,  and  was  formerly  true  of  Avig 
non  and  the  Yenaissin,  which  were  Papal  territory  enclosed 
(enclaves  hence  called)  in  France. 

2.  The  mouths  of  rivers,  bays,   and  estuaries,  furnishing 
access  to  the  land. 


80  STATES    RIGHT    OF    PROPERTY  §  54 

3.  The  sea-coast  to  the  distance  of  a  marine  league.     This 
is  a  regulation  dictated  bj  the  necessities  of  self-protection,  as 
is  expressed  in  the  maxim  of  Bynkershoek,  "  terras  potestas 
finitur,  ubi  finitur  armorum  vis."     For  the  police  of  commerce 
the  distance  is  extended  to  four  leagues,  that  is,  according  to 
the  usage  prevailing  in  Great  Britain  and  the  United  States, 
foreign  goods  cannot  be  transshipped  within  that  distance  with 
out  the  payment  of  duties.     The  extent  of  sea-coast  included 
within  national  territory  has  been  variously  defined.     Bynker 
shoek,  and  others  after  him,  limit  it  by  the  reach  of  cannon 
shot ; — "  quousque  tormenta  exploduntur."     (De  domin.  mar. 
cap.  2,  from  which  place  the  maxim  above  cited  is  taken.) 
Rayneval  limits  it  by  the  horizon,  a  very  vague  and  absurd 
suggestion ;  Yalin,  by  the  depth  of  the  sea :  territory  should 
reach  out  (he  would  propose)  to  where  there  is  no  bottom. 
Modern  writers,  whether  limiting  it  by  a  marine  league,  or  by 
cannon  shot,  agree  substantially  in  making  it  an  incident  to 
territorial  sovereignty  on  the  land.     Comp.  Ortolan,  Diplom. 
de  la  mer.  Tol.  I,  chap.  8.     As  the  range  of  cannon  is  increas 
ing,  and  their  aim  becoming  more  perfect,  it  might  be  thought 
that  the  sea  line  of  territory  ought  to  widen.     But  the  point  is 
not  likely  to  become  one  of  any  great  importance. 

4.  Vessels  belonging  to  the  citizens  of  the  nation  on  the 
high  seas,  and  public  vessels,  wherever  found,  have  some  of 
the  attributes  of  territory. 

In  regard,  however,  to  the  territorial  character  of  vessels  it 
is  necessary  to  be  more  definite,  for  if  they  have  this  property 
in  some  respects  but  not  in  all,  only  false  and  illogical  deduc 
tions  can  be  drawn  from  an  unqualified  statement.  Is  it  true, 
then,  that  they  are  identical  in  their  properties  with  territory  ? 
If  a  ship  is  confiscated  on  account  of  piracy  or  of  violation  of 
custom-house  laws  in  a  foreign  port,  or  is  there  attached  by 
the  owner's  creditor  and  becomes  his  property,  we  never  think 
that  territory  has  been  taken  away.  For  a  crime  committed 
in  port  a  vessel  may  be  chased  into  the  high  seas  and  there 
arrested,  without  a  suspicion  that  territorial  rights  have  been 
violated,  while  to  chase  a  criminal  across  the  borders  and  seize 


§  55  AND    RIGHTS    OVER    TERRITORY.  81 

him  on  foreign  soil  is  a  gross  offence  against  sovereignty. 
Again,  a  private  vessel  when  it  arrives  in  a  foreign  port,  ceases 
to  be  regarded  as  territory,  unless  treaty  provides  otherwise, 
and  then  becomes  merely  the  property  of  aliens.  If  injury  is 
done  to  it,  it  is  an  injury  which  indirectly  affects  the  sovereign 
of  the  alien,  whereas  injuries  to  territory,  properly  so  called, 
affect  the  public  power  in  an  immediate  manner.  It  is  unsafe, 
then,  to  argue  on  the  assumption  that  ships  are  altogethei 
territory,  as  will  appear,  perhaps,  when  we  come  to  consider 
the  laws  of  maritime  warfare.  On  the  other  hand,  private 
ships  have  certain  qualities  resembling  those  of  territory :  (1.) 
As  against  their  crews  on  the  high  seas ;  for  the  territorial  or 
municipal  law  accompanies  them  as  long  as  they  are  beyond 
the  reach  of  other  law,  or  until  they  come  within  the  bounds 
of  some  other  jurisdiction.  (2.)  As  against  foreigners,  who  are 
excluded  on  the  high  seas  from  any  act  of  sovereignty  over 
them,  just  as  if  they  were  a  part  of  the  soil  of  their  country. 
Public  vessels  stand  on  higher  ground:  they  are  not  only 
public  property,  built  or  bought  by  the  government,  but  they 
are,  as  it  were,  floating  barracks,  a  part  of  the  public  organism, 
and  represent  the  national  dignity,  and  on  these  accounts,  even: 
in  foreign  ports,  are  exempt  from  the  local  jurisdiction.  In; 
both  cases,  however,  it  is  on  account  of  the  crew,  rather  than 
of  the  ship  itself,  that  they  have  any  territorial  quality..  Take 
the  crew  away,  let  the  abandoned  hulk  be  met  at  sea :  it  now 
becomes  property,  and  nothing  more. 

§55. 

The  high  sea  is  free  and  open  to  all  nations.     It  cannot  be 
the  property  or  the  empire  of  a  particular  state. 

TL  .   ,  Freedom    of    the 

It  cannot  become  vrowertif*  ior  it  cannot  be  DOS-  wgh  seas  and  of 

,  ,  t     .,    fishing  there. 

sessed,  or  have  any  personal  action  exercised 
upon  it,  which  must  prevent  a  similar  action  of  another.  It 
cannot  be  mixed  up  with  labor,  or  enclosed,  or,  like  wild  land, 
be  waiting  for  any  such  future  action.  It  can,  as  little,  become 
the  empire  of  any  particular  state.  Otherwise  one  state  might 
exclude  others  from  it,  and  from  that  intercourse  for  which  it 
6 


82  STATES    RIGHT    OF    PROPERTY  §55 

is  the  pathway,  which  would  be  inconsistent  with  the  equality 
and  sovereignty  of  nations.  Such  empire  could  begin  only  in 
the  consent  of  the  whole  world  expressed  by  treaty,  which  was 
never  given,  or  in  prior  discovery  and  use.  But  this  last  is 
no  ground  at  all,  and  if  it  were,  would  work  against  the  so- 
called  discoverer  in  favor  of  the  natives  of  newly  found  coasts. 
In  fine,  the  destination  of  the  sea  is  clearly  for  the  common 
benefit  of  mankind ;  it  is  a  common  pathway,  separating  and 
yet  binding,  intended  alike  for  all. 

The  liberty  of  the  sea  and  of  navigation  is  now  admitted 
on  all  hands.  But  formerly  the  ocean,  or  portions  of  it,  were 
claimed  as  a  monopoly.  Thus  the  Portuguese  prohibited  other 
nations  from  sailing  in  the  seas  of  Guinea  and  to  the  East  In 
dies.  No  native  born  Portuguese  or  alien,  says  one  of  the 
ancient  royal  ordinances,  shall  traverse  the  lands  or  seas  of 
Guinea  and  the  Indies,  or  any  other  territory  conquered  by  us, 
without  license,  on  pain  of  death  and  the  loss  of  all  his  goods. 
The  Spanish  nation  formerly  claimed  the  right  of  excluding 
all  others  from  the  Pacific.  Against  such  claims,  especially  of 
the  Portuguese,  Grotius  wrote  his  Mare  Liberum  in  1609,  in 
which  he  lays  down  the  general  principle  of  the  free  right  of 
navigation,  and  that  the  sea  cannot  be  made  property,  and  re 
futes  the  claims  of  the  Portuguese  to  the  discovery  of  countries 
which  the  ancients  have  left  us  an  account  of,  as  well  as  their 
claims  through  the  donation  of  Pope  Alexander  YI.  And  yet 
the  countrymen  of  Grotius,  who  had  been  defenders  of  the  lib 
erty  of  the  seas,  sought  to  prevent  the  Spaniards,  going  to  the 
Philippines,  from  taking  the  route  of  the  Cape  of  Good  Hope. 
The  English,  in  the  17th  century,  claimed  property  in  the  seas 
surrounding  Great  Britain,  as  far  as  to  the  coasts  of  the  neigh 
boring  countries,  and  in  the  18th  only  softened  down  the  claim 
of  property  into  one  of  sovereignty.  Selden,  who  in  1635  pub 
lished  his  Mare  Clausum,v?liilQ  he  contends  against  the  monop 
olizing  pretensions  of  Spain  and  Portugal,  contends  zealously 
on  the  ground  of  certain  weak  ancient  precedents  for  this  claim 
of  his  country.  The  shores  and  ports  of  the  neighboring  states, 
says  he,  are  the  limits  of  the  British  sea-empire,  but  in  the  wide 


§  55  AND    RIGHTS    OVER    TERRITORY.  83 

ocean,  to  the  north  and  west  the  limits  are  yet  to  be  constiT 
tuted.*  Russia,  finally,  at  a  more  recent  date,  based  an  ex 
clusive  claim  to  the  Pacific,  north  of  the  51st  degree,  upon 
the  ground  that  this  part  of  the  ocean  was  a  passage  to  shores 
lying  exclusively  within  her  jurisdiction.  But  this  claim  was 
resisted  by  our  government,  and  withdrawn  in  the  temporary 
convention  of  1824.  A  treaty  of  the  same  empire  with  Great 
Britain  in  1825  contained  similar  concessions. 

The  rights  of  all  nations  to  the  use  of  the  high  sea  being 
the  same,  their  right  to  fish  upon  the  high  seas,  or  on  banks 
and  shoal  places  in  them  are  equal.  The  right  to  fish  in  bays 
and  mouths  of  rivers  depends  on  the  will  of  the  sovereign. 

Thus  the  right  to  fish  on  the  banks  of  Newfoundland  is 
open  to  all,  but  there  is  no  right  to  dry  and  cure  Fisl]ery  quegtion 
fish,  even  on  the  unsettled  coasts  belonging  to  stSelandhGreYt 
any  sovereign,  without  permission  of  the  same.  I 
And  here  a  brief  sketch  of  the  fishery  question  between  the 
United  States  and  Great  Britain  may  not  be  out  of  place. 

By  the  treaty  of  1Y83,  which  admitted  the  independence 
of  the  United  States,  Great  Britain  conceded  to 
them  the  right  of  fishing  on  the  Banks  of  New 
foundland  along  such  coasts  of  the  same  island  as  were  used 
by  British  seamen,  in  the  Gulf  of  St.  Lawrence,  and  on  the 
coasts,  bays,  and  creeks  of  all  other  British  dominions  in 
America ;  as  well  as  the  right  of  drying  and  curing  fish  in  any 
of  the  unsettled  bays,  harbors  and  creeks  of  Nova  Scotia,  the 
Magdalen  islands  and  Labrador,  so  long  as  they  should  con 
tinue  unsettled ;  but  not  the  right  of  drying  or  curing  on  the 
island  of  Newfoundland. 

At  and  after  the  treaty  of  Ghent,  which  contained  no  pro 
visions  respecting  the  fisheries,  it  was  contended  Treaty  of  Ghent, 
by  American  negotiators,  but  without  good  rea-  1814> 
son,  that  the  article  of  the  peace  of  1783,  relating  to  the  fish 
eries,  was  in  its  nature  perpetual,  and  thus  not  annulled  by  the 
war  of  1812.     By  a  convention  of  1818  the  priv-  convention  of 
ilege  was  again,  and  in  perpetuity,  opened  to  cit-  1818' 

*  Comp.  Ortolan,  u.  s.,  Chap.  7. 


84:  STATES    RIGHT    OF    PROPERTY  §56 

izens  of  the  United  States.  They  might  now  fish,  as  well  as 
cure  and  dry  fish  on  the  greater  part  of  the  coast  of  New 
foundland  and  Labrador,  and  on  the  Magdalen  islands,  so  long 
as  the  same  should  continue  unsettled ;  while  the  United  States 
on  their  part  renounced  forever  any  liberty  "  to  take  or  cure 
fish,  on,  or  within  three  marine  miles  of  any  of  the  coasts,  bays, 
creeks,  or  harbors  of  his  Britannic  Majesty's  dominions  in 
America  not  included  within  the  above-mentioned  limits.* 
Finally,  by  the  treaty  of  1854,  commonly  called 

Treaty  of  1854.  J9.'     J    ..  /    ,  1*1. 

the  reciprocity  treaty,  leave  was  given  to  fisher 
men  from  the  United  States,  to  take  fish,  excepting  shell  fish, 
on  the  coasts  and  in  the  bays,  harbors,  and  creeks  of  Canada, 
New  Brunswick,  Nova  Scotia,  Prince  Edward's  Island  and  the 
islands  adjacent,  without  limit  as  to  distance  from  the  shore, 
with  permission  to  land  upon  the  places  named  and  upon  the 
Magdalen  Islands  for  the  purpose  of  drying  their  nets  and 
curing  their  fish ;  provided,  that  in  so  doing,  they  do  not  in 
terfere  with  the  rights  of  private  property,  or  with  British  fish 
ermen  who  should  have  pre-occupied  parts  of  the  said  coasts 
for  the  same  purpose.  The  same  rights,  with  the  same  limita 
tions,  are  given  to  British  subjects  on  the  coasts  of  the  United 
States  from  the  36th  degree  northwards.  In  both  cases  the 
treaty  does  not  include  salmon  and  shad  fisheries,  nor  the  fish 
eries  in  rivers  and  the  mouths  of  rivers,  f 

§56. 

The  claims  of  exclusive  control  over  certain  portions  of 

water  are,  in  a  great  part,  either  doubtful  or  to  be 

Bive  control  over  rejected.     These  are  broad  arms  or  recesses  of  the 

certain  waters.  . 

sea ;  narrow  seas  not  shut  up  within  the  territory 
of  a  single  state ;  narrow  passages,  especially  such  as  lead  to 
interior  seas ;  such  interior  seas  themselves ;  and  rivers  furnish 
ing  the  only  or  most  convenient  outlet  for  an  inland  state, 
which  rise  in  one  country  and  have  their  mouths  in  another. 
1.  Bays  of  the  sea, — called  in  England  the  king's  chambers, 
— are  within  the  jurisdiction  of  the  states  to  whose 
territory  the  promontories  embracing  them  be- 
*  See  Wheaton's  El.  II.  4,  §  8,  and  III.  2,  §  9.       f  Murhard  Nouv.  Rec.  16.  1. 498. 


AND    RIGHTS    OVER    TERRITORY.  85 

long.     Thus  the  Delaware  Bay  was  declared  in  1793  to  belong 
exclusively  to  the  United  States.     "When,  how- 

•'  _  and  Gulfs. 

ever,  the  headlands  are  very  remote,  there  is  more 
doubt  in  regard  to  the  claim  of  exclusive  control  over  them ; 
and,  for  the  most  part,  such  claim  has  not  been  made.  Chan 
cellor  Kent  (I.  30)  inclines  to  claim  for  the  United  States  the 
dominion  over  a  very  wide  extent  of  the  adjacent  ocean.  "  Con 
sidering,"  says  he,  "  the  great  extent  of  the  line  of  the  Ameri 
can  coasts,  we  have  a  right  to  claim,  for  fiscal  and  defensive 
regulations,  a  liberal  extension  of  maritime  jurisdiction ;  and 
it  would  not  be  unreasonable,  as  I  apprehend,  to  assume  for 
domestic  purposes  connected  with  our  safety  and  welfare  the 
control  of  waters  on  our  coasts,  though  included  within  lines 
stretching  from  quite  distant  headlands, — as,  for  instance,  from 
Cape  Ann  to  Cape  Cod,  and  from  Nantucket  to  Montauk 
Point,  and  from  that  point  to  the  Capes  of  the  Delaware,  and 
from  the  south  Cape  of  Florida  to  the  Mississippi.  In  1793 
our  government  thought  they  were  entitled,  in  reason,  to  as 
broad  a  margin  of  protected  navigation  as  any  nation  what 
ever,  though  at  that  time  they  did  not  positively  insist  beyond 
the  distance  of  a  marine  league  from  the  sea-shores ;  and,  in 
1806,  our  government  thought  it  would  not  be  unreasonable, 
considering  the  extent  of  the  United  States,  the  shoalness  of 
their  coast,  and  the  natural  indication  furnished  by  the  well- 
defined  path  of  the  Gulf  Stream,  to  expect  an  immunity  from 
belligerent  warfare  for  the  space  between  that  limit  and  the 
American  shore."  But  such  broad  claims  have  not,  it  is  be 
lieved,  been  much  urged,  and  they  are  out  of  character  for  a 
nation  that  has  ever  asserted  the  freedom  of  doubtful  waters, 
as  well  as  contrary  to  the  spirit  of  the  more  recent  times. 

2.  Great  Britain  has  long  claimed  supremacy  in  the  narrow 
seas  adjoining  that  island.  But  the  claim,  although  cheaply 
satisfied  by  paying  certain  honors  to  the  British  flag,  has  not 
been  uniformly  acquiesced  in,  and  may  be  said  to  be  falling 
into  desuetude.*  And  if  it  had  been  urged  and  admitted  in 

*  Comp.  Vattel,  I.  23,  §  289 ;  Wheaton's  Hist.  Part  I.  §  18 ;  Wheaton's  Ele 
ments,  II.  4,  §  9  ;  Heffter,  §  73.     See  also  §  86. 


86  STATES    RIGHT    OF    PROPERTY  §  57 

former  times,  the  force  of  the  prescription  would  be  broken  by 
the  plea  that  the  views  of  the  world,  in  regard  to  the  freedom 
of  commerce,  have  become  much  more  enlarged.  "What  Gro- 
tius  contended  for  in  his  Mare  Liberum  against  the  exclusive 
claim  of  Portugal  to  the  possession  of  oriental  commerce,  "jure 
gentium  quibusvis  ad  quosvis  liberam  esse  navigationem,"  is 
now  for  the  most  part  admitted,  and  the  pathways  of  com 
merce  can  no  longer  be  obstructed. 

§57. 

3.  The  straits  which  have  figured  most  largely  in  interna- 
straits  and  inland  tional  history  are  those  leading  into  the  Baltic 
and  the  Black  Seas. 

A.  The  claims  of  Denmark  to  exclusive  control  over  El 
ite  Danish  sineur  sound  and  the  Belts,  are  now  matters  of 
history,  but  a  brief  sketch  of  the  past  usage  may 
not  be  without  its  use.  Danish  jurists  rested  these  claims  ra 
ther  on  immemorial  prescription  than  on  the  cost  of  providing 
for  the  security  of  commerce  by  lighthouses,  or  by  removing 
obstacles  to  navigation.  In  1319  a  charter  regulated  the  duties 
to  be  paid  by  the  Dutch.  In  1544  the  Emperor  Charles  Y. 
stipulated  the  payment  of  the  Sound  dues  by  the  merchants 
of  the  Low  Countries.  Subsequently,  Denmark  raised  the 
tariff,  which  brought  on  a  war  with  the  Dutch  and  other  na 
tions.  In  1645  Sweden  obtained  exemption  from  tolls,  and, 
at  the  same  time,  by  the  treaty  of  Christianople,  the  amount 
of  duties  to  be  paid  by  the  Dutch  was  again  adjusted.  France 
and  England,  in  the  seventeenth  century,  agreed  to  pay  the 
same  tariff  with  the  Dutch. 

Things  continued  thus  for  two  centuries.  In  1840,  atten 
tion  having  been  drawn  in  England  to  the  Sound  dues  by  the 
delays  and  vexations  of  commerce,  negotiations  were  had  which 
removed  part  of  the  complaints. 

In  1826  a  commercial  convention  for  ten  years  with  Den 
mark  placed  the  United  States  on  the  footing  of  the  most 
favored  nations,  which  caused  a  reduction  of  the  duties  we  had 
been  paying  hitherto.  In  1843  the  justice  of  the  demand 


§67  AND    RIGHTS    OVER    TERRITORY.  87 

began  to  be  more  especially  drawn  into  question,  and  the 
Secretary  of  State  expressed  himself  against  it.  Amid  the 
difficulties  of  Denmark,  in  1848,  the  Charge  from  the  United 
States  proposed,  as  a  commutation  for  the  claim,  the  sum  of 
two  hundred  and  fifty  thousand  dollars.  Five  years  afterwards 
the  diplomatic  agent  of  the  United  States  was  instructed  by 
Mr.  Marcy  to  take  the  ground  with  Denmark,  that  his  country 
could  recognize  no  immemorial  usage  not  coinciding  with  na 
tural  justice  and  international  law.  In  the  next  year  the 
President  advised  that  the  convention  of  1826  should  be  re 
garded  as  at  an  end ;  and,  after  a  vote  of  the  Senate  to  this  effect, 
notice  was  given  to  Denmark  that  it  would  be  broken  off  in  a 
year  from  that  time.  Denmark  now,  in  October  1855,  pro 
posed  to  our  government  to  enter  into  a  plan  of  capitalizing  the 
dues  according  to  an  equitable  adjustment,  but  the  government 
declined  being  a  party  to  such  an  arrangement.  Meanwhile, 
as  difficulties  with  the  United  States  seemed  to  be  impending, 
and  as  other  nations  were  interested  in  putting  an  end  to  this 
annoyance,  a  congress  met  at  Copenhagen  to  consider  this 
question,  and  fixed  on  the  sum  of  thirty-five  million  rixdollars 
(at  fifty  cents  of  our  money  to  the  dollar)  as  the  sum  for  which 
Denmark  ought  to  give  up  the  Sound  dues  for  ever.  This 
payment  was  divided  among  the  nations  interested  in  propor 
tion  to  the  value  of  their  commerce  passing  through  the  Danish 
straits ;  and  an  arrangement  for  extinguishing  the  claim  has 
since  been  accepted  by  them  all.  In  March,  1857,  our  govern 
ment  agreed  to  pay,  as  its  portion  of  the  capitalized  stock, 
three  hundred  ninety-three  thousand  and  eleven  dollars.* 

B.  The  entrance  into  the  Black  Sea  and  that  sea  itself. 
Until  Russia  acquired  territory  on  the  Black  Sea,  The  Black    sea 

.-!  .,1       .,  ..  and    the    passage 

that  sea,  with  the  straits  leading  to  it,  and  the  into  it. 
sea  of  Marmora  lay  entirely  within  Turkish   territory.     But 
the  existence  of  another  power  on  the  Black  Sea  modified  the 
rights  of  Turkey.     By  the  treaty  of  Adrian ople,  in  1829,  en 
trance  through  the  straits  into  the  Black  Sea,  and  its  naviga- 

*  Comp.  especially  an  article  in  the  North  American  Review  for  January,  1867, 
vol.  84,  from  which  we  have  drawn  freely. 


88  STATES    RIGHT    OF    PROPERTY  §  58 

tion,  were  admitted  to  belong  to  Russia  and  to  powers  at  amity 
with  Russia.  The  ancient  practice,  however,  had  been  to 
prohibit  all  foreign  vessels  of  war  from  entering  the  Bosphoms 
and  the  Dardanelles ;  and  by  the  treaty  of  London,  in  1841,  be 
tween  the  five  powers  and  Turkey  this  usage  was  sanctioned. 
Finally,  by  the  treaty  of  Paris,  March  30, 1856,  "  the  Black  Sea 
is  made  neutral.  Open  to  the  mercantile  marine  of  all  nations, 
its  waters  and  ports  are  formally,  and  in  perpetuity,  interdicted 
to  flags  of  war,  whether  belonging  to  the  bordering  powers,  or 
to  any  other  power."  The  treaty,  however,  proceeds  to  grant 
to  Russia  and  Turkey  the  liberty  of  making  a  convention  in 
regard  to  a  small  force,  to  be  kept  up  within  the  sea  for  coast 
service.  By  this  convention  the  two  powers  allow  one  another 
to  maintain  six  steam  vessels  of  not  over  eight  hundred  tons, 
and  four  light  steamers,  or  sailing  vessels,  of  not  over  two  hun 
dred  tons  burthen  each. 

§58. 

4.  Where  a  navigable  river  forms  the  boundary  between 
Rights  over  river  ^wo  states,  both  are  presumed  to  have  free  use  of 
navigation.  itj  ^^  tke  ^y^ing  line  will  run  in  the  middle 
of  the  channel,  unless  the  contrary  is  shown  by  long  occupancy 
or  agreement  of  the  parties.  If  a  river  changes  its  bed,  the 
line  through  the  old  channel  continues,  but  the  equitable  right 
to  the  free  use  of  the  stream  seems  to  belong,  as  before,  to  the 
state  whose  territory  the  river  has  forsaken. 

When  a  river  rises  within  the  bounds  of  one  state  and  emp 
ties  into  the  sea  in  another,  international  law  allows  to  the 
inhabitants  of  the  upper  waters  only  a  moral  claim,  or  imper 
fect  right  to  its  navigation.  We  see  in  this  a  decision  based 
on  strict  views  of  territorial  right,  which  does  not  take  into 
account  the  necessities  of  mankind  and  their  destination  to 
hold  intercourse  with  one  another.  When  a  river  affords  to 
an  inland  state  the  only,  or  the  only  convenient  means  of  access 
to  the  ocean  and  to  the  rest  of  mankind,  its  right  becomes  so 
strong,  that  according  to  natural  justice  possession  of  territory 
ought  to  be  regarded  as  a  far  inferior  ground  of  right.  Is  such 
a  nation  to  be  crippled  in  its  resources,  and  shut  out  from  man- 


£58  AND    RIGHTS    OVER    TERRITORY.  89 

kind,  or  should  it  depend  on  another's  caprice  for  a  great  part 
of  what  makes  nations  fulfil  their  vocation  in  the  world,  merely 
because  it  lies  remote  from  the  sea  which  is  free  to  all  ?  Tran 
sit,  then,  when  necessary,  may  be  demanded  as  a  right :  an 
interior  nation  has  a  servitude  along  nature's  pathway,  through 
the  property  of  its  neighbor,  to  reach  the  great  highway  of 
nations.  It  must,  indeed,  give  all  due  security  that  trespasses 
shall  not  be  committed  on  the  passage,  and  pay  all  equitable 
charges  for  improvements  of  navigation  and  the  like ;  but,  this 
done,  its  travellers  should  be  free  to  come  and  go  on  that 
water-road  which  is  intended  for  them.  An  owner  of  the 
lower  stories  of  a  house  could  hardly  shut  out  persons  living  in 
the  upper,  of  which  there  was  another  proprietor,  from  the  use 
of  the  stairs. — A  river  is  one.  As  those  who  live  on  the  upper 
waters  would  have  no  right  to  divert  the  stream,  so  those  on 
the  lower  cannot  rightfully  exclude  them  from  its  use. 

The  law  of  nations  has  not  acknowledged  such  a  right,  but 
has  at  length  come  to  the  same  result  by  opening,  in  succes 
sion,  the  navigation  of  nearly  all  the  streams  flowing  through 
the  territory  of  Christian  nations  to  those  who  dwell  upon  their 
upper  waters,  or  even  to  mankind.  We  annex  a  sketch  of  the 
progress  of  this  freedom  of  intercourse  by  means  of  rivers. 

An  Act  of  the  Congress  of  Vienna,  in  1815,  declared  that 
the  use  of  streams  separating  or  traversing  the  Congress  of  vi- 

/»    T/V.  -,         -,  T    ,  .      -,       enna.  The  Rhine, 

territory  oi  different  powers,  should  be  entirely  etc. 
free,  and  not  be  denied  for  the  purposes  of  commerce  to  any 
one,  being  subject  only  to  police  rules,  which  should  be  uniform 
for  all,  and  as  favorable  as  might  be  for  the  traffic  of  all  nations. 
Other  articles  require  uniform  tolls  for  the  whole  length  of  a 
stream,  and  nearly  uniform, — not  exceeding  the  actual  rate, — 
for  the  various  kinds  of  goods,  rights  of  haulage,  etc.*  By  this 
act  the  Rhine  became  free ;  but  a  controversy  having  arisen  as 
to  what  was  to  be  understood  by  the  Rhine,  near  the  sea,  it 
was  decided  by  the*  nations  having  sovereignty  over  its  banks, 
that  navigation  should  be  open  through  the  mouths  called  the 
Waal  and  the  Leek,  and  through  the  artificial  canal  of  Yoorne. 

*  Articles  108-117  in  the  Appendix  to  Wheaton's  EL 


90  STATES    RIGHT    OF    PROPERTY  §  58 

The  same  act  opened  the  Scheldt,  which  had  been  closed 
by  the  peace  of  Westphalia  to  the  Spanish  Neth 
erlands  in  favor  of  the  Dutch,  and  opened  by  the 
French  on  their  occupation   of  Belgium   in    1792.     On   the 
divulsion  of  Belgium  from  Holland,  in  1831,  the  treaty  of  sep 
aration  again  provided  for  the  free  navigation  of  this  river.* 
All  the  other  navigable  streams  of  Europe  were  open  to  the 
inhabitants  on  their  banks,  either  before  the  treaty 

The  Danube.  ._,.  .  ITT  . 

oi  V  ienna,  or  by  its  general  rule  above  mention 
ed,  with  the  exception  of  the  Danube.  By  the  treaty  of  Bu 
charest,  in  1812,  and  that  of  Adrianople,  in  1829,  the  commer 
cial  use  of  this  stream  was  to  pertain  in  common  to  the  sub 
jects  of  Turkey  and  of  Russia.  By  the  recent  treaty  of  Paris, 
in  1856,  the  Danube  also  came  within  the  application  of  the  rule 
of  the  treaty  of  Yienna,  to  which  Turkey  was  not  an  original 
party.  This  was  the  last  European  stream,  the  freedom  of 
which  was  to  be  gained  for  commerce,  f 

While  Spain,  after  the  independence  of  the  United  States, 
was  mistress  of  the  lower  waters  of  the  Missis 
sippi,  she  was  disposed  to  claim  exclusive  control 
over  the  navigation  near  the  gulf.     But  by  the  treaty  of  San 

*  Comp.  Wheaton's  Hist.  282-284,  552;  Wheaton's  El.  II.  4,  §  15. 
'  f  Five  articles  of  the  treaty  are  concerned  with  the  navigation  of  the  Danube, 
articles  15-19.  Art.  15  declares  the  freedom  of  the  stream,  according  to  the  Vienna 
act,  as  a  part  of  the  public  law  of  Europe  for  ever,  and  prohibits  tolls  on  vessels 
and  duty  on  goods,  levied  on  the  simple  account  of  the  navigation.  Art.  16  appoints 
a  commission  of  delegates  from  the  five  great  powers  with  Sardinia  and  Turkey,  to 
clear  out  the  mouths  of  the  Danube ;  and,  in  order  to  defray  the  expenses  of  such 
improvements,  fixed  duties,  equal  in  amount  for  all  nations,  may  be  levied.  This 
commission,  by  article  18,  is  to  finish  its  work  in  two  years,  and  then  shall  be  pro 
nounced  to  be  dissolved.  Meanwhile,  a  permanent  commission,  by  article  17,  is  to 
be  appointed,  consisting  of  delegates  of  Austria,  Bavaria,  Turkey  and  Wurtemberg, 
to  which  a  commission  from  the  three  Danubian  principalities  is  to  be  joined,  who 
shall  draw  up  rules  of  navigation  and  fluvial  police,  remove  remaining  obstacles, 
cause  works  necessary  for  the  navigation  to  be  executed  along  the  whole  course  of 
the  river,  and  when  the  first  mentioned  commission  shallJoe  dissolved,  shall  see  that 
the  mouths  of  the  river  .are  kept  in  good  order.  Art.  19  allows  each  of  the  con 
tracting  powers  at  all  times  to  station  two  light  vessels  at  the  mouth  of  the  Danube, 
for  the  purpose  of  assuring  the  execution  of  regulations  settled  by  common  con 
sent.  For  the  act  of  navigation  of  the  Danube,  growing  out  of  Art.  1*7,  above  men 
tioned,  see  Murhard  Nouv.  Rec.  xvi.  2,  75. 


§58  AND    RIGHTS    OVER    TERRITORY.  91 

Lorenzo  el  Real,  in  1795,  the  use  of  the  stream  and  liberty  to 
deposit  goods  at  and  export  them  from  New  Orleans  was 
granted  to  citizens  of  the  United  States.  Before  this  the  ques 
tion  of  the-  rights  of  the  parties  had  been  agitated  between 
them.  The  United  States  had  contended  that  there  is  a 
natural  right  belonging  to  the  inhabitants  on  the  upper  waters 
of  a  stream,  under  whatever  political  society  they  might  be 
found,  to  descend  by  it  to  the  ocean.  It  was  acknowledged, 
on  the  part  of  the  United  States,  that  this  was,  at  the  most,  an 
imperfect  right,  and  yet  the  right  was  claimed  to  be  as  real  as 
any  other,  however  well-defined,  so  that  its  refusal  would  con 
stitute  an  injury,  for  which  satisfaction  might  be  demanded. 
There  seems  to  be  a  weakness  in  this  argument,  for  by  admit 
ting  the  right  to  be  an  imperfect  one,  the  claim  of  injury  for 
not  complying  with  it  was  cut  off.  In  1803,  Louisiana,  which 
had  been  ceded  by  Spain  to  France  in  1800,  was  purchased  of 
the  latter  by  the  United  States,  which  thus  had  the  territorial 
jurisdiction  over  all  the  course  of  the  river.* 

The  St.  Lawrence,  after  separating  for  a  great  distance  the 
British  possessions  from  those  of  the  American 

TT    •  T-»   •   .  i  rrn  St.  Lawrence. 

Union,  traverses  British  territory  to  the  sea.  The 
government  of  Great  Britain,  for  a  long  time,  steadily  refused 
to  concede  the  right  of  using  the  lower  stream  for  the  purposes 
of  navigation,  and  the  same  diplomatic  controversy  was  carried 
on ,  as  in  the  case  of  the  Mississippi,  between  the  right  accord 
ing  to  the  strict  law  of  nations,  and  the  claim  on  the  principles 
of  natural  justice.  Meanwhile,  canals  and  railroads  having 
bound  the  western  part  of  the  Union  to  the  Atlantic  seaboard, 
and  'New  York  having  become  a  financial  centre  even  for  the 
Canadas,  the  importance  of  the  question  was  greatly  lessened. 
By  the  reciprocity  treaty  of  June  5,  1854,  the  navigation  of  the 
river,  as  well  as  of  the  canals  in  Canada,  was  at  length  thrown 
open  to  the  United  States,  on  the  same  conditions  which  are 
imposed  on  the  subjects  of  Great  Britain.  This  privilege  may 
be  revoked  by  the  latter  party  upon  due  notice.  On  their  part 
the  United  States  granted  to  British  subjects  the  free  naviga 
tion  of  Lake  Michigan. 

*  Comp.  Wheaton's  Hist.  p.  506-511. 


92  STATES   RIGHT    OF   PROPERTY,    ETC.  §58 

The  vast  system  of  streams  which  find  their  way  to  the  sea 
La  Plata  eystem  ^J  means  of  the  La  Plata  is  open  for  navigation, 
not  only  to  the  inhabitants  of  the  banks,  but  also 
in  a  degree  to  strangers.  The  Argentine  confederation  and 
Buenos  Ayres  opened  their  waters  in  1853.  In  the  same  year 
Bolivia,  whose  territory  is  on  the  head  waters,  made  a  number 
of  places  on  the  banks  of  its  rivers  free  ports.  Brazil  had  done 
the  same,  and  several  years  ago  bound  Paraguay  by  a  treaty 
to  the  same  policy ;  but  the  government  of  this  latter  country 
closed  navigation  above  the  capital,  Assuncion,  to  foreigners, 
— allowing  the  use  of  the  waters  only  to  Brazil  and  the  Argen 
tine  republic, — and  below,  by  police  regulations,  sought  to 
throw  the  trade  principally  into  the  hands  of  one  nation. 

Such  have  been  the  advances  in  the  freedom  of  navigation 
during  the  last  forty  years.  There  is  now  scarcely  a  river  in 
the  Christian  portions  of  the  world,  the  dwellers  on  whose 
upper  waters  have  not  the  right  of  free  communication,  by 
God's  channels,  with  the  rest  of  mankind.  Whether  the 
motive  which  brought  this  about  has  been  self-interest  or  sense 
of  justice,  an  end  approved  alike  by  justice  and  benevolence 
has  been  reached,  and  the  world  cannot  fail  to  be  the  gainer. 


CHAPTEE  III. 

EIGHT  OB  CLAIM  OF  INTERCOURSE. — RELATIONS  OF  FOREIGNERS  WITHIN 
A  TERRITORY  OF  A  STATE. 

§89. 

WE  have  already  come  to  the  conclusion  that  sovereignty 
in  the  strictest  sense  authorizes  a  nation  to  decide  intercourse     of 

-,  .  .  ^      states,  how  far  a 

upon  what  terms  it  will  have  intercourse  with  right. 
foreigners,  and  even  to,  shut  out  all  mankind  from  its  borders. 
(§  25.)  If  a  protective  tariff,  or  the  prohibition  of  certain 
articles  is  no  violation  of  rights,  it  is  hard  to  say  how  far  one 
state  may  not  go  in  refusing  to  have  commerce  with  another. 
If  foreigners  may  be  placed  under  surveillance,  or  may  have 
various  rights  of  citizens  refused  to  them,  why  may  they  not 
be  excluded  from  the  territory  ?  If  it  be  said  that  the  destina 
tion  of  separate  states,  as  of  separate  families,  is  to  be  helpful 
to  one  another,  that  entire  isolation  is  impossible,  still  the 
amount  of  intercourse  must  be  left  to  the  judgment  of  the  party 
interested ;  and  if  a  state,  judging  incorrectly,  strives  to  live 
within  itself  as  much  as  possible,  is  it  to  be  forced  to  change  its 
policy,  any  more  than  to  modify  its  protective  tariff  ? 

And  yet  some  kind  of  intercourse  of  neighboring  states  is 
so  natural,  that  it  must  have  been  coeval  with  their  foundation, 
and  with  the  origin  of  law;  it  is  so  necessary,  that  to  decline  it, 
involves  often  extreme  inhumanity;  it  is  so  essential  to  the 
progress  of  mankind,  that  unjust  wars  have  been  blessings 
when  they  opened  nations  to  one  another.  There  could,  of 
course,  be  no  international  law  without  it.  The  following 
maxims  relating  to  the  so-called  right,  are,  in  substance,  laid 
down  by  Heffter.  (§  33.) 


94  RIGHT    OF    INTERCOURSE.  §69 

1.  Entire  non-intercourse  shuts  a  nation  out  from  being  a 
What  a  state  may  partner  in  international  law. — [This,  however,  is 
respects    "inter-  n°t  true,  if  international  law  is  taken  in  its  broad 
est  sense,  for  to  treat  a  nation,  or  its  subjects, 

when  these  latter  are  fallen  in  with,  as  having  no  rights,  be 
cause  they  have  no  intercourse  with  us,  is  not  only  inhuman 
but  unjust.] 

2.  ISTo  nation  can,  without  hostility,  cut  off  another  from 
the  use  of  necessaries  not  to  be  obtained   elsewhere.     [But 
necessaries  must  not  be  confounded  with  articles  highly  de 
sirable.] 

3.  No  state  has  a  right  to  cut  another  off  from  the  innocent 
use  of  its  usual  ways  of  communication  with  a  third  state.     "  The 
older  writers  called  this  the  jus  transitus,  or  jus  passagii  in- 
nozii,  but  disputed  whether  it  is  a  perfect  or  imperfect  right. 
Only  necessary  wants  create  a  definite  right.     The  refusal  of 
something  merely  useful  to  one  party,  to  grant  which  does  the 
other  no  harm,  is  at  most  an  unfriendly  procedure.     Many,  as 
Grotius  (II.  2,  §  13),  and  Yattel  (II.  §  123,  132-134),  decide, 
that  there  is  a  right  in  this  case,  but  naturally  have  to  reserve 
for  the  owner,  the  decision  whether  he  will  be  harmed  or  not  by 
parting  with  his  commodities." 

4.  No  state  can,  without  violation  of  right,  exclude  another 
from  intercourse  with  a  third  state  against  the  will  of  the 
latter. 

5.  In  its  intercourse  with  others  every  state  is  bound  to 
truth  and  honesty,  [without  which  intercourse  must  be  broken 
up]. 

6.  No  state  can  exclude  the  properly  documented  subjects 
of  another  friendly  state,  or  send  them  away  after  they  have 
been  once  admitted  without  definite  reasons,  which  must  be 
submitted  to  the  foreign  government  concerned. 

To  these  we  may  add  that 

No  state  can  withdraw  from  intercourse  with  others  with 
out  a  violation  of  a  right  gained  by  usage. 

No  state  can  treat  with  cruelty,  or  deprive  of  their  property 
the  subjects  of  another,  whom  some  calamity,  such  as  the  dis- 


§60  RELATIONS    OF    FOREIGNERS,    ETC.  95 

tress  or  stranding  of  a  vessel,  throws  within  its  borders,  without 
wrong  and  just  claim  of  redress. 

§60. 

Within  these  limits,  intercourse,  whether  through  travellers 
or  merchants,  is  regulated  by  the  free  sovereign  What  a  state  may 
act  of  each  state.  Whether  it  will  have  a  pass-  do- 
port  system,  a  protective  tariff,  special  supervision  of  strangers ; 
whether  it  will  give  superior  commercial  privileges  to  one 
nation  over  another;  in,  short,  whether  it  will  be  fair  and 
liberal,  or  selfish  and  monopolizing,  it  must  decide,  like  any 
private  tradesman  or  master  of  a  family,  for  itself.  The  law 
of  nations  does  not  interfere  at  this  point  with  the  will  of  the 
individual  state.* 

It  deserves  to  be  remarked,  however,  that  non-intercourse 
and  restriction  are  fast  disappearing  from  the  commercial  ar 
rangements  of  the  world,  and  that  jealousy  of  foreigners  is 
vanishing  from  the  minds  of  all  the  more  civilized  nations,  in 
the  East  as  well  as  in  the  West.  The  feeling  that  there  is  a 

*  There  is  a  difficulty  in  the  theory  of  international  law,  arising  from  the  weak 
ness  of  the  claim  which  one  state  has  to  intercourse  with  another,  compared  with 
the  immense  and  fundamental  importance  of  intercourse  itself.  There  can  be  110 
law  of  nations,  no  civilization,  no  world,  without  it,  but  only  separate  atoms  ;  and 
yet  we  cannot  punish,  it  is  held,  the  refusal  of  intercourse,  as  a  wrong  done  to  us, 
by  force  of  arms,  but  can  only  retaliate  by  similar  conduct.  I  have,  in  §  25,  en 
deavored  to  meet  this  by  a  parallel  case, — marriage  is  all  important,  yet  for  com 
mencing  it  entire  consent  of  the  parties  is  necessary.  And  yet,  to  put  intercourse 
on  the  ground  of  comity  or  even  of  duty,  fails  to  satisfy  me.  Practically,  we  may 
say  that  nations  will  have  intercourse  by  trade  and  otherwise,  whenever  they  find 
it  to  be  for  their  interest ;  but  the  case  of  half-civilized  or  long  secluded  nations, 
like  Japan,  which  satisfy  their  own  wants,  and  rather  avoid  than  desire  foreign  arti 
cles,  shows  that  long  ages  may  elapse  before  views  suggested  by  self-interest  or  sus 
picion  are  abandoned.  Shall  we  then  force  them  into  intercourse  ?  Perhaps  we 
may,  if  we  get  a  just  occasion  of  war  with  them ;  but  not  because  they  take  a  po 
sition  which,  though  disastrous  for  the  interests  of  mankind,  is  yet  an  exercise  of 
sovereignty. 

But  apart  from  this  theoretical  view,  there  are  many  duties,  duties  of  mutual 
help,  incumbent  on  nations  who  hold  intercourse  with  one  another,  which  serve  to 
facilitate  such  intercourse.  Such  are,  aid  to  travellers,  use  of  courts,  and  the  like, 
which  ought  to  be  regarded  as  the  necessary  means  of  promoting  admitted  inter 
course,  and  therefore  as  obligatory,  when  intercourse  is  once  allowed. 


96  RIGHT    OF   INTERCOURSE.  §61 

certain  right  for  lawful  commerce  to  go  everywhere  is  in  ad 
vance  of  the  doctrine  of  strict  right  which  the  law  of  nations 
lays  down.  The  Christian  states,  having  tolerably  free  inter 
course  with  one  another,  and  perceiving  the  vast  benefits  which 
flow  from  it,  as  well  as  being  persuaded  that  in  the  divine 
arrangements  of  the  world,  intercourse  is  the  normal  condition 
of  mankind,  have  of  late,  sometimes  under  pretext  of  wrongs 
committed  by  states  less  advanced  in  civilization,  forced  them 
into  the  adoption  of  the  same  rules  of  intercourse,  as  though 
this  were  a  right  which  could  not  be  withheld.  Recent  trea 
ties  with  China  and  Japan  have  opened  these  formerly  secluded 
countries  to  commercial  enterprise,  and  even  to  travel ;  and 
the  novel  sight  of  an  ambassadar  from  Japan  visiting  our 
country  will  not  be  so  strange  as  the  concessions  of  trade  which 
this  shy  people  has  already  granted.*  It  is  conceded,  more 
over,  that  the  great  roads  of  transit  shall  be  open  to  all  nations, 
not  monopolized  by  one ;  and  the  newer  commercial  provisions 
quite  generally  place  the  parties  to  them  on  the  footing  of  the 
most  favored  nations.  This  freedom  and  spread  of  intercourse 
is,  in  fact,  one  of  the  most  hopeful  signs  in  the  present  history 
of  the  world. 

§61. 

There  could  be  no  intercourse  between  nations  if  aliens  and 
individual  aliens  their  property  were  not  safe  from  violence,  and 

entitled  to  protec-  •"/»    i  -it 

tion.  even  11  they  could  not  demand  the  protection  of 

the  state  where  they  reside.  This  protection,  be  it  observed,  is 
territorial  in  its  character,  that  is,  it  is  due  to  them  only  within 
the  territory  of  a  state,  on  its  vessels  and  when  they  are  with 
its  ambassadors,  while  the  protection  of  citizens  or  subjects,  as 
being  parts  or  members  of  the  state,  ceases  at  no  time  and  in 
no  place.  The  obligation  to  treat  foreigners  with  humanity, 
and  to  protect  them  when  once  admitted  into  a  country,  de 
pends  not  on  their  belonging  to  a  certain  political  community 
which  has  a  function  to  defend  its  members,  nor  wholly  on 
treaty,  but  on  the  essential  rights  of  human  nature.  Hence 

*  Since  this  was  written,  in  1859,  a  Japanese  delegation  has  become  a  matter  of 
fact.    2d  ed. 


§  61  RELATIONS    OF    FOREIGNERS,    ETC.  97 

1.  It  has  been  claimed  with  apparent  justice,  that  aliens 
have  a  right  of  asylum.     To  refuse  to  distressed  foreigners,  as 
shipwrecked  crews,  a  temporary  home,  or  to  treat  them  with 
cruelty,  is  a  crime.     As  for  the  exile  who  has  no  country,  in 
ternational  law  cannot  ensure  his  protection,  but  most  nations, 
in  ancient  and  modern  times,  that  have  passed  beyond  the  in 
ferior  stages  of  civilization,  have  opened  the  door  to  such  un 
fortunate  persons,  and  to  shut  them  out, when  national  safety 
does  not  require  it,  has  been  generally  esteemed  a  flagitious 
and  even  an  irreligious  act.     The  case  of  aliens  who  have  fled 
from  their  native  country  on  account  of  crime,  will  be  consid 
ered  in  the  sequel. 

2.  The  right  of  innocent  passage  has  already  been  con 
sidered.    It  may  be  claimed  on  stronger  grounds  than  the  right 
of  entering  and  settling  in  a  country,  for  the  refusal  may  not 
only  injure  the  aliens  desirous  of  transit,  but  also  the  country 
into  which  they  propose  to  go.     The  right  of  transit  of  armies, 
and  of  entrance  of  armed  ships  into  harbors,  will  be  considered 
by  themselves.     As  their  presence  may  be  dangerous,  to  refuse 
transit  or  admission  in  these  cases  rests  on  grounds  of  its  own. 

3.  The  right  of  emigration.  Formerly  it  was  doubted  whether 
an  individual  had  a  right  to  quit  his  country  and  settle  elser- 
where,  avithout  leave  from  his  government ;  and  in  some  coun 
tries  he  who  did  go  had  to  sacrifice  a  part  of  his  property.*   At 
present  such  a  right  is  very  generally  conceded,  under  certain 
limitations.     "  The  right  of  emigration,"  says  HefFter,  "  is  in 
alienable  :  only  self-imposed  or  unfulfilled  obligations  can  re 
strict  it."     The  relation  of  the  subject  to  the  sovereign  is  a 
voluntary  one,  to  be  terminated  by  emigration.    But  a  state  is 
not  bound  to  allow  the  departure  of  its  subjects,  until  all  pre 
existing  lawful   obligations  to  the  state  have  been  satisfied. 
Notice,  therefore,  may  be  required  of  an  intent  to  emigrate, 
and  security  be  demanded  for  the  satisfaction  of  back-standing 

*  By  the  jus  detradus,  droit  de  detraction,  property  to  which  strangers  out  of  the 
country  succeeded  was  taxed.  By  an  analogous  tax,  as  the  gabelle  <P  emigration, 
those  who  left  a  country  were  amerced  in  part  of  their  goods,  immovable  or  mova 
ble.  Such  odious  rights,  says  De  Martens  (I.  §  90),  although  existing  still,  are  very 
generally  abolished. 


98  RIGHT    OF    INTERCOURSE.  §  62 

obligations,  befcre  the  person  in  question  is  allowed  to  leave 
the  country.*  De  Martens  writes  to  this  effect.f  "  It  belongs 
to  universal  and  positive  public  law  to  determine  how  far  the 
state  is  authorized  to  restrict  or  prevent  the  emigration  of  the 
natives  of  a  country.  Although  the  bond  which  attaches  a 
subject  to  the  state  of  his  birth  or  his  adoption  be  not  indis 
soluble,  every  state  has  a  right  to  be  informed  beforehand  of 
the  design  of  one  of  its  subjects  to  expatriate  himself,  and  to 
examine  whether  by  reason  of  crime  or  debt,  or  engagements 
not  yet  fulfilled  towards  the  state,  it  is  authorized  to  retain  him 
longer.  These  cases  excepted,  it  is  no  more  justified  in  prohib 
iting  him  from  emigrating,  than  it  would  be  in  prohibiting 
foreign  sojourners  from  doing  the  same.  These  principles  have 
always  been  followed  in  Germany.  They  have  been  sanctioned 
even  by  the  federal  pact  of  the  German  confederation,  as  far 
as  relates  to  emigration  from  the  territory  of  one  member  of 
the  confederation  to  that  of  another." 

§62. 

Foreigners  admitted  into  a  country  are  subject  to  its  laws, 
unless  the  laws  themselves  give  them,  in  a  greater 

Relation  of  aliens  ,  •          ,  A.          °  mi  .       .     '  *       a 

to  the  laws,  and  or  less  degree,  exemption.     This  is  rarely  done, 

their  condition.  _      ,  '  r  .  «      _.     _       .  J 

and  the  general  practice  of  all  Christian  states 
treats  foreigners — except  some  especial  classes  of  them — as  tran 
sient  subjects  of  the  state  where  they  reside,  or  on  whose  ships 
they  sail  over  the  high  sea.  They  are  held  to  obedience  to  its 
laws  and  punished  for  disobeying  them,  nor  is  it  usual  to  miti 
gate  their  punishment  on  account  of  their  ignorance  of  the  law 
of  the  land.  They  are,  again,  as  we  have  seen,  entitled  to  pro 
tection,  and  failure  to  secure  this,  or  any  act  of  oppression  may 
be  a-  ground  of  complaint,  of  retorsion,  or  even  of  war,  on  the 
part  of  their  native  country.  On  the  other  hand,  the  law  of 
the  land  may  without  injustice  place  them  in  an  inferior  posi 
tion  to  the  native-born  subject.  Thus  they  may  be  obliged  to 
pay  a  residence  tax,  may  be  restricted  as  to  the  power  of  hold 
ing  land,  may  have  no  political  rights,  may  be  obliged  to' give 

*  Heflfter,  §  15,  §  33.  f  Precis,  etc.  Paris  ed.  of  1858,  §  91. 


§63  RELATIONS    OF    FOREIGNERS,    ETC.  99 

security  in  suits  where  the  native  is  not,  may  be  forbidden  to 
enter  into  certain  callings,  may  be  subjected  to  special  police 
regulations,  without  any  ground  for  complaint  that  they  are 
oppressed.  But  most  restrictions  upon  foreigners  have  disap 
peared  with  the  advance  of  humane  feeling,  and  the  increasing 
frequency  of  intercourse  between  nations,  until  they  are  in  al 
most  all  Christian  countries,  in  all  rights  excepting  political, 
nearly  on  a  level  with  native-born  persons.  In  fact,  if  foreign 
ers  are  admitted  to  establish  themselves  in  a  country,  it  is  but 
justice  that  all  private  rights  should  be  accorded  to  them. 
Thus  the  courts  of  their  domicil  ought  to  be  as  open  to  them, 
as  to  the  native-born  citizen,  for  collecting  debts  and  redress 
ing  injuries. 

§63. 

The  progress  of  humanity  in  the  treatment  of  foreigners, 
may  be  shown  by  the  following  brief  sketch,  in-  PrORreB3  of  hn_ 
eluding  only  Greece  and  Eome,  and  the  Christian  ™ ^  atowardflf 
states.  In  Greece  different  policies  prevailed.  aliene'  m*strated- 
Aristocratic  and  agricultural  states  were  in  general  jealous  of 
strangers,  democratic  and  commercial  ones  viewed  them  with 
favor.  Sparta  was  called  e^fyofei/o?,  as  excluding  them  and 
watching  them  while  in  the  territory.  At  Athens,  where  the 
policy  was  humane  and  liberal,  domiciled  strangers, — metoeci, 
— were  subject  to  a  small  stranger's  tax,  had  heavier  pecuniary 
burdens  than  the  native  citizen,  were  required  to  serve  in  the 
army  and  navy,  and  needed  a  patron  for  the  transaction  of 
legal  business.  Their  great  numbers,  equal  to  one  half  of  the 
citizens,  show  that  they  prospered  under  this  policy,  which  was 
extended  to  barbarians  as  well  as  to  Greeks.  Sometimes  they 
attained,  by  vote  of  the  community,  to  full  citizenship.  A  spe 
cial  but  smaller  class  of  foreigners — the  tVoreXefc, — had  a  status 
more  nearly  like  that  of  the  citizen  than  the  ordinary  metoeci. 
In  many  states  of  Greece,  individual  aliens,  or  whole  commu 
nities,  received  by  vote  some  of  the  most  important  civic  rights, 
as  those  of  intermarriage,  of  holding  real  estate  within  the  ter 
ritory,  and  of  immunity  from  taxation.  (&r?ya/iu*,  ejfcrrja-i^  and 
oreXeta.) 


100  RIGHT    OF    INTERCOURSE.  §  63 

In  Rome,  foreigners  enjoyed  those  rights  which  belonged  to 
the  jus  gentium  ;  they  could  acquire  and  dispose  of  property, 
could  sue  in  the  courts,  and  had  an  especial  magistrate  to  at 
tend  to  their  cases  at  law,  but  could  make  no  testament,  nor 
had  they  the  connubium  and  commercium  of  Roman  citizens. 

In  the  Germanic  states,  after  the  fall  of  the  Roman  empire, 
foreigners  at  first  were  without  rights,  and  a  prey  to  violence, 
as  having  no  share  in  political  bodies.  Hence  they  needed 
and  fell  under  the  protection  of  the  seigneur,  or  of  his  bailiff. 
In  France,  especially,  the  seigneur,  as  the  price  of  his  protec 
tion,  levied  a  poll  tax  on  the  stranger,  and  arrogated  the  right 
to  inherit  his  goods,  when  he  had  no  natural  heirs  within  the 
district.  Even  the  capacity  of  making  a  testament  was  taken 
away  from  him,  and  Sometimes  even  inland  heirs  were  excluded 
from  the  succession.  Some  lords  forbade  strangers  to  leave  the 
district  after  a  certain  length  of  residence,  and  to  marry  out  of 
it.  And  sometimes  these  rights  were  exercised  over  French 
men  from  other  juristic  territories  (chatellenies),  under  the 
same  suzerains.  The  name  by  which  this  right  or  aggregate 
of  rights  went,  is  jus  albinagii,  droit  cPaubaine,  which  M. 
Dietz,  the  highest  authority  in  Romanic  philology,  derives  not 
from  Albanus,  a  Scotchman,  nor  from  alibi  natus,  but  from 
alibi  simply,  formed  from  the  adverb,  after  the  analogy  of  pro- 
chain,  lointain. 

At  length  the  droit  d'aubaine  fell  to  the  king  alone,  and 
now  consisted  first  in  an  extraordinary  tax  levied  upon  stran 
gers  on  certain  occasions,  and  secondly  in  the  king's  becoming 
the  heir  of  strangers  who  had  left  no  heirs  of  their  body  within 
the  kingdom.  Many  private  persons  were  exempted  from  the 
operation  of  this  right  by  special  privilege,  and  whole  nations, 
as  the  United  States  in  1778,  by  treaty.  Abolished  by  the 
constituent  assembly  in  1790,  and  re-established  by  the  Code 
Napoleon  on  the  principle  of  reciprocity,  it  again  disappeared 
anew  from  French  legislation  in  1819,  when  a  law  gave  to  for 
eigners  the  right  of  succession  in  France  to  the  same  extent 
with  native  born  Frenchmen.* 

*  See  especially  Warnkonig,  Franzos.  Rechtsgesch.  II.  180-188,  471,  and  de 
Martens,  I.  §  90. 


§64  RELATIONS    OF    FOREIGNERS,    ETC.  101 

§64. 

Certain  classes  of  aliens  are,  by  the  comity  of  nations,  ex 
empted  in  a  greater  or  less  degree  from  the  con- 

,     ,        ,  .          ••       -I         1      /»     1      •  Exterritoriality. 

trol  of  the  laws,  in  the  land  of  their  temporary 
sojourn.  They  are  conceived  of  as  bringing  their  native  laws 
with  them  out  of  their  native  territory,  and  the  name  given  to 
the  fiction  of  law, — for  it  seems  there  must  be  a  fiction  of  law 
to  explain  a  very  simple  fact, — is  exterritoriality.  This  priv 
ilege  is  conceded  especially  (I.)-  to  sovereigns  travelling  abroad 
with  their  trains ;  (2.)  to  ambassadors,  their  suite,  family,  and 
servants ;  and  (3.)  to  the  officers  and  crews  of  public  armed 
vessels  in  foreign  ports,  and  to  armies  in  their  permitted  transit 
through  foreign  territory. 

This  privilege  is  not  constant,  nor  unlimited.  The  right 
of  entrance  into  foreign  territory,  on  which  the  Limits  of  extern- 
privilege  is  founded,  is  one  dependent  on  a  toriality- 
comity  which  circumstances  may  abridge.  Thus,  for  reasons  of 
state,  a  sovereign  may  have  the  permission  refused  to  him  to 
set  foot  on  a  foreign  soil,  and  much  more  is  the 

TT  „     ,   .  T  .          -vrri  •  AB  to  sovereigns, 

like  true  of  ships  and  armies.  When  a  sovereign 
is  abroad,  his  person  is  inviolate  and  exempt  from  the  laws  of 
the  land,  but  he  may  not  exercise  acts  of  sovereignty,  not  ac 
corded  to  him  by  his  native  laws,  as,  for  instance,  that  of  pun 
ishing  persons  in  his  suite  capitally, — as  Queen  Christina  of 
Sweden  put  to  death  one  of  her  household  in  France, — nor 
acts  hazardous  to  the  safety  or  the  sovereignty  of  the  state 
where  he  is  sojourning,  nor,  perhaps,  acts  which  the  sovereign 
of  the  country  himself  cannot  exercise.  Neither  then  nor  at 
any  time  will  this  right  apply,  so  as  to  exempt  real  or  other 
property,  which  he  may  have  in  the  foreign  country,  from  its 
local  laws,  with  the  exception  of  such  effects  as  he  may  have 
brought  with  him.  For  the  same  right  as  conceded  to  ambas 
sadors,  we  refer  to  the  chapter  relating  to  those  functionaries. 
Ships  of  war,  and  vessels  chartered  to  convey  a  sovereign  or 
his  representative,  are  peculiar  in  this  respect. 

,    .  '    Ships  of  war, 

that  the  vessel  is  regarded  in  a  certain  sense  to 

be  part  of  alien  territory  moved  into  the  harbors  of  another 


102  RIGHT    OF    INTERCOURSE.  •        §64 

state.  (§  54.)  The  crews  on  board  the  public  vessels  are  under 
their  native  laws,  but  on  shore,  if  guilty  of  acts  of  aggression  or 
hostility,  can  be  opposed  by  force  and  arrested.  So  also  the 
vessel  itself  must  pay  respect  to  the  port  and  health  laws.* 
Crimes  committed  on  shore  expose  persons  belonging  to  such 
vessels  not  only  to  complaint  before  their  own  sovereign,  but 
also  to  arrest  and  trial.  Of  armies  in  transit,  when 

Armies  in  transit,  .    ,  ..     .,    .__          ..  /TTT    ^    n  -<  n  ^\ 

such  a  right  is  conceded,  Vattel  says  (III.  8,  §  130) 
that  "  the  grant  of  passage  includes  that  of  every  particular 
thing  connected  with  the  passage  of  troops,  and  of  things  with 
out  which  it  would  not  be  practicable ;  such  as  the  liberty  of 
carrying  whatever  may  be  necessary  to  an  army  ;  that  of  exer 
cising  military  discipline  on  the  officers  and  soldiers ;  and  that 
of  buying  at  a  reasonable  rate  anything  an  army  may  want, 
unless  a  fear  of  scarcity  renders  an  exception  necessary,  when 
the  army  must  carry  with  them  their  provisions."  If  we  are 
not  deceived,  crimes  committed  along  the  line  of  march,  away 
from  the  body  of  the  army,  as  pilfering  and  marauding,  au 
thorize  arrest  by  the  magistrates  of  the  country,  and  a  demand 
at  least,  that  the  commanding  officers  shall  bring  such  crimes 
to  a  speedy  trial.  When  the  transit  of  troops  is  allowed,  it  is 
apt  to  be  specially  guarded  by  treaties. 

The  crews  of  commercial  vessels  in  foreign  ports  have  in 

general  no  such  exemption  from  the  law  of  the 

Crews  of  commer-    °  _  1 

ciai  vessels  in  place.  By  the  law  of  France,  however,  crimes 
committed  on  board  of  foreign  vessels  in  French 
ports,  where  none  but  the  crew  are  concerned,  are  not  con 
sidered  as  pertaining  to  the  jurisdiction  of  the  courts  of  France, 
while  offences  committed  on  the  shore  and  against  others  than 
the  vessels'  crews,  come  before  the  tribunals  of  the  kingdom. 
This  is  a  compromise  between  territorial  sovereignty  and  the 
principle  or  fiction  that  the  ship  is  a  part  of  the  domain  of  its 
own  nation,  wherever  found, 
vessels  driven  m-  Vessels,  driven  into  foreign  waters  against 

to  foreign  harbors      -.  .-,-.        ,-»    ,1  T     /> 

out  of  their  course,  the  will  oi  the  master,  are  exempted  from  or- 

*  Ortolan,  I.  218. 


§65  RELATIONS    OF    FOREIGNERS,    ETC.  103 

dinary  charges  and  jurisdiction,  and  allowed  to  depart  un 
hindered."* 

§65. 

Exemption  from  local  jurisdiction  has  been  granted  to  for 
eigners  from  Christian  lands,  resident  in  certain 

Exemptions  to  for- 

oriental  countries ;  the  reasons  for  which  lie  in  ejgners  in  certain 

Eastern  countries. 

the  fact,  that  the  laws  and  usages  there  prevail 
ing  are  quite  unlike  those  of  Christendom,  and  in  the  natural 
suspicion  of  Christian  states,  that  justice  will  not  be  adminis 
tered  by  the  native  courts,  which  leads  them  to  obtain  special 
privileges  for  their  subjects.  The  arrangements  for  this  pur 
pose  are  contained  in  treaties  which  have  a  general  resem 
blance  to  one  another.  In  Turkey,  and  some  other  Moham 
medan  countries,  foreigners  form  communities  under  their 
consuls,  who  exercise  over  them  a  jurisdiction,  both  in  civil 
and  criminal  matters,  which  excludes  that  of  the  territorial 
courts.  In  civil  cases  an  appeal  lies  to  the  courts  at  home,  and 
in  criminal,  beyond  the  imposition  of  fines,  the  consul  has 
power  only  to  prepare  a  case  for  trial  before  the  same  tribu 
nals,  f  But  the  extent  of  power  given  to  its  functionaries  each 
nation  determines  for  itself. 

The  same  system  in  general  has  been  followed  in  the  trea 
ties  of  Christian  states  with  China,  of  which  that  made  by  the 
United  States  in  1844,  and  spoken  of  below  under  the  title  of 
consuls,  may  serve  as  an  example.  Quite  recently  the  same 
exterritorial  jurisdiction  has  been  granted  by  the  government 
of  Japan  to  functionaries  of  the  United  States  resident  in  that 
country.^: 

*  Comp.  Heffter,  §  79,  and  Webster's  Letter  to  Ashburton  respecting  the  Creole, 
Works,  VI.  303-313. 

f  Wheaton,  El.  II.  2,  §  11. 

\  An  Act  was  passed  by  Congress,  in  1850,  to  carry  into  effect  certain  stipula 
tions  in  the  treaties  between  the  United  States  and  China,  Japan,  Siam,  Turkey,  Per 
sia,  Tripoli,  Tunis,  Morocco,  and  Muscat,  and  by  which  our  laws  in  criminal  and  civil 
matters  are  extended  over  American  citizens  in  those  countries ;  also  the  common 
law,  including  equity  and  admiralty.  Ministers  and  consuls  have  full  judicial  pow 
ers,  and  can  punish  according  to  the  magnitude  of  the  offence.  The  President  is 
authorized  to  appoint  seven  Marshals  to  execute  processes,  one  in  Japan,  four  in 
China,  one  in  Siam,  and  one  in  Turkey.  Murder  and  insurrection,  or  rebellion 


104  RIGHT    OF    INTERCOURSE.  §  66 

§66. 

Foreign  residents  in  most  Christian  countries  can  sustain, 
AiienB  losing  in  m  ^ie  course  of  time,  a  closer  or  more  distant 
S^eSracterof  connection  with  the  body  politic  within  whose 
borders  they  live.  They  can  acquire  nationality, 
or  in  other  words  become  naturalized,  or  they  may  remain  in 
the  territory  as  domiciliated  strangers. 

Naturalization  implies  the  renunciation  of  a  former  nation 
ality,  and  the  fact  of  entrance  into  a  similar  re- 

Naturalization.         ,       .  -, .    .  -r     .  .,  , 

lation  towards  a  new  body  politic.  It  is  possible 
for  a  person,  without  renouncing  his  country,  or  expatriating 
himself,  to  have  the  privileges  of  citizenship  in  a  second  coun 
try,  although  he  cannot  sustain  the  same  obligations  to  both. 
Is  it  also  possible  for  him  to  renounce  his  country,  and  become 
a  citizen  of  another,  so  far  as  even  to  be  bound,  like  his  fellow 
citizens,  to  take  up  arms  against  the  land  of  his  birth  ?  Most 
nations  hold  that  this  transfer  of  allegiance  is  possible,  and 
embody  the  conditions  of  it  in  their  naturalization  laws.  Even 
England,  which  retains  the  doctrine  of  indelible  allegiance, 
admits  strangers  to  citizenship  by  special  act  or  grant.  (  §  66 
infra.)  But  inasmuch  as  the  conditions  of  naturalization  vary, 
there  may  arise  here  a  conflict  of  laws,  and  two  nations  may 
at  once  claim  the  same  man  as  sustaining  to  them  the  obliga 
tions  of  a  citizen.  International  law  has  not  undertaken  to 
decide  in  such  conflicts,  and  the  question  is  scarcely  one  of 
practical  importance,  except  wThen  the  naturalized  person  re 
turns  to  his  native  country,  and  when  he  is  caught  fighting 
against  her.  There  is  no  doubt  that  a  state,  having  under 
taken  to  adopt  a  stranger,  is  bound  to  protect  him  like  any 
other  citizen.  Should  he  return  to  his  native  soil,  and  be  ap- 

against  the  government  of  either  of  said  countries,  with  intent  to  subvert  the  same, 
are  made  capital  offences,  punishable  with  death.  Our  consuls  or  commercial 
agents  on  islands  not  inhabited  by  any  civilized  people,  or  whom  we  have  not  rec 
ognized  by  treaty,  are  also  empowered  to  exercise  judicial  functions  over  American 
citizens.  By  the  treaty  with  Japan,  signed  at  Yedo,  July  29,  1858,  offences  shall 
be  tried  in  the  offenders'  court,  when  the  American  is  the  offending  party,  and  the 
courts  of  each  nation,  that  is,  the  consular  and  the  Japanese,  are  open  to  creditors 
belonging  to  the  other  nationality. 


§66  RELATIONS    OF    FOREIGNERS,  ETC.  105 

pretended  for  the  Don-fulfilment  of  civic  duties  which  devolved 
on  him  before  his  emigration,  there  would  be  no  ground  of 
complaint  on  that  score.  Should  he  be  required  anew  to  enter 
into  the  status  of  a  citizen,  this  force  must  be  regarded  by  his 
adopted  country,  on  her  theory  of  civic  rights,  as  a  wrong  call 
ing  for  redress.  Should  he  be  subjected  to  ill-treatment  when 
a  captive  in  war,  on  the  ground  of  fighting  against  his  native 
country,  here,  too,  there  would  be  reason  for  retaliation.  In 
short,  the  nation  which  has  naturalized,  and  thus  bound  itself 
to  protect  a  person,  cannot  abandon  its  obligation,  on  account 
of  views  of  civic  obligations  which  another  nation  may  enter 
tain. 

Whether  anything  short  of  completed  naturalization  can 
sunder  the  tie  to  the  place  of  origin,  may  be  a  question.  It  is 
held  that  a  domiciled  stranger  may  not  with  impunity  be  found 
in  arms  against  his  native  country.*  For  the  effects  of  incipi 
ent  naturalization,  compare  the  case  of  Koszta  in  the  appendix 
to  this  chapter.  The  English  practice  in  the  earlier  part  of 
this  centiyy,  of  impressing  seamen  from  neutral  vessels,  on  the 
ground  that  they  owed  allegiance  to  their  native  sovereign,  was 
objectionable,  whether  this  doctrine  of  inalienable  allegiance 
stands  or  falls  ;  for  to  seize  sailors  on  foreign  vessels  is  to  act 
the  sovereign  out  of  one's  own  territory ;  it  is  to  execute  one's 
own  laws  where  the  laws  of  another  sovereign  are  supreme. 
(Comp.'§202.) 

We  add  here  the  regulations  of  some  of  the  more  impor 
tant  countries  in  regard  to  naturalization,  f  Rules  of  several 

T-nii'j.  j?  i  L     i  11          nations  as  to  natu- 

In  England  it  was  formerly  granted  only  by  raiization. 
act  of  parliament ;  but  by  a  statute  of  1844,  one  of  the  prin 
cipal  secretaries  of  state  can,  on  petition  from  an  alien  desirous 
of  being  naturalized,  grant  him  all  the  capacities  and  rights 
of  a  natural-born  British  subject,  except  the  capacity  of  being 
a  member  of  the  privy  council  or  a  member  of  either  house  of 
Parliament.  The  Secretary  may  except  other  rights  also. 
(Phillimore  I.  §  354) 

In  France  a  stranger  becomes  a  citizen,  when  after  reach- 

*  Kent,  I.  76,  Lect.  IV.  f  Fcelix  (droit  intern,  prive,  3d  ed.)  I.  81-100. 


106  RIGHT    OF    INTERCOURSE.  §66 

ing  tne  age  of  twenty-one,  obtaining  liberty  of  domicil,  and 
declaring  his  intention  to  remain  in  France,  he  resides  there 
for  ten  consecutive  years.  His  naturalization  must  also  be 
pronounced  to  be  in  force  by  the  head  of  the  state.  In  ad 
dition  to  this  the  child  of  foreign  parents,  born  on  French 
soil,  may  claim  the  quality  of  a  Frenchman  in  the  year  suc 
ceeding  his  majority.  Naturalization  in  a  foreign  country  in 
volves  the  loss  of  French  citizenship.* 

In  Prussia  an  appointment  to  a  public  function  brings  the 
right  of  citizenship  with  it,  and  the  same  is  the  case  in  Aus 
tria,  and  perhaps  elsewhere.  In  Prussia  the  higher  adminis 
trative  authorities  have  the  right  to  naturalize  strangers  of 
good  character  who  possess  the  means  of  subsistence,  except 
ing  Jews,  subjects  of  other  members  of  the  Germanic  confed 
eracy,  and  persons  incapable  of  taking  care  of  themselves. 

In  Austria  leave  to  exercise  a  profession,  ten  years  of  resi 
dence,  and  the  consent  of  the  authorities,  are  pre-requisites  to 
naturalization. 

In  both  of  the  last  named  states  nationality  is  shaken 
off  by  emigration,  for  which  permission  has  been  obtained 
from  the  government. 

In  Russia  an  oath  of  allegiance  to  the  emperor  naturalizes, 
but  naturalized  strangers  can  at  any  time  renounce  their 
character,  and  return  to  their  own  country. 

In  the  United  States,  the  person  wishing  to  be  naturalized 
must  make  a  declaration  on  oath,  before  certain  judicial  per 
sons,  of  an  intent  to  become  a  citizen  and  to  renounce  his 
former  nationality,  two  years  at  least  after  which,  and  after 
five  years  of  residence,  he  may  become  a  citizen  in  full  of  the 
United  States,  although  not  necessarily  a  citizen  of  any  state 
in  the  Union. 

In  many  countries,  a  woman  on  her  marriage  to  a  native 
acquires  nationality,  and  loses  it  on  her  marriage  to  a  foreigner. 
In  the  laws  of  some  countries,  wives  and  minor  children  follow, 

*  Demangeat  on  Fcelix,  I.  88,  gives  the  latest  legislation  on  this  subject.  The 
term  of  ten  years  can  be  reduced  to  one  in  favor  of  inventors  and  others  who  con 
fer  important  services  on  France. 


§67  RELATIONS    OF    FOREIGNERS,    ETC.  107 

as  a  thing  of  course,  the  status  of  the  head  of  the  family,  and 
the  son  of  a  foreign  resident  born  and  brought  up  on  the  soil, 
has  peculiar  facilities  of  naturalization. 

§67. 

Domicil  being  more  a  legal  than  a  political  term,  has  had 
nearly  the  same,  although  a  somewhat  vague  def- 

•    •   •  i  A    j    .c     •*.•  f    Domicil,  what? 

mition,  always  and  everywhere.  A  definition  ot 
Roman  law  is  expressed  in  these  terms  :  "  In  eo  loco  singulos 
habere  domicilium  non  ambigitur,  ubi  quis  larem  rerumque  ac 
fortunarum  suarum  summam  constituit,  unde  rursus  non  sit 
discessurus  si  nihil  avocat,  unde  quum  profectus  est  peregrinari 
videtur,  quo  si  rediit  peregrinari  jam  destitit."  *  According 
to  Savigny  f  "  it  is  the  place  which  a  man  has  freely  chosen 
for  his  durable  abode,  and  thereby  also  as  the  centre  of  his 
jural  relations  and  of  his  business."  But  in  the  case  of  a 
minor,  who  can  exercise  no  jural  choice  in  the  matter,  his 
domicil  is  held  to  be  that  of  his  father.  $  The  domicil,  says 
Yattel,  "  is  the  habitation  fixed  in  any  place,  with  the  inten 
tion  of  always  staying  there.  A  man  then  does  not  establish 
his  domicil  in  any  place  unless  h*e  makes  sufficiently  known  his 
intention  of  fixing  himself  there,  either  tacitly  or  by  an  express 
declaration.  However,  this  declaration  is  no  reason  why,  if  he 
afterward  changes  his  mind,  he  may  not  remove  his  domicil 
elsewhere.  In  this  sense,  he  who  stops,  even  for  a  long  time, 
in  a  place,  for  the  management  of  his  affairs,  has  only  a  simple 
habitation  there,  but  no  domicil."  (I.  §  218.)  With  the  first 
part  of  this  definition  Story  justly  finds  fault :  few  foreigners 
have  the  intention  of  always  staying  abroad ;  few,  therefore, 
could  have  any  domicil.  "  It  would  be  more  correct  to  say 
that  that  place  is  properly  the  domicil  of  a  person  in  which  his 
habitation  is  fixed  without  any  present  intention  of  removing 
therefrom." §  "Two  things  must  concur,"  says  the  same 
eminent  jurist,  "to  constitute  domicil, — first,  residence,  and 
secondly,  intention  of  making  it  the  home  of  the  party,"  and 

*  C.  J.  C.  10.  39.  L.  7,  de  incolis.          f  System  d.  h.  rom.  Rechts,  VIII.  58. 
J  Foelix  I.  54.  §  Conflict  of  Laws,  Chap.  Ill,  §  43. 


108  RIGHT    OF    INTERCOURSE.  §67 

when  once  domicil  is  acquired  it  is  not  shaken  off  by  occasion 
al  absences  for  the  sake  of  business  or  of  pleasure,  or  even  by 
visits  to  a  former  domicil  or  to  one's  native  country. 

It  is  often  a  matter  of  difficulty  to  decide  where  a  person 
has  his  domicil.  Story  has  laid  down  a  number  of  practical 
rules  for  determining  this  point,  some  of  the  more  important 
of  which  are  the  following:  (1.)  A  person  who  is  under  the 
power  of  another  is  considered  to  have  the  domicil  of  the  prin 
cipal  party,  as  a  child  of  the  father,  a  wife  of  the  husband. 
(2.)  There  is  a  presumption  in  favor  of  the  native  country, 
when  the  question  lies  between  that  and  another  domicil,  and 
in  favor  of  the  place  where  one  lives  or  has  his  family,  rather 
than  in  favor  of  his  place  of  business.  (3.)  Free  choice  is 
necessary ;  hence  constrained  residence  is  no  domicil,  and  in 
case  of  change  a  new  domicil  begins,  as  soon  as  choice  begins 
to  take  effect.  (4.)  A  floating  purpose  to  leave  the  soil  at 
some  future  period  does  not  prevent  domicil  from  being  ac 
quired,  for  such  a  purpose  does  not  amount  to  a  full  and  fixed 
intention. 

According  to  some  authorities  a  man  can  have  more  than 
one  domicil, — for  example  if  he  have  establishments  of  equal 
importance  in  two  places  between  which  he  divides  his  time, 
— or  he  may  have  no  domicil  at  all.*  This  latter  position  is 
denied  by  others,  f  on  the  ground  that  a  former  domicil  must 
remain  until  a  new  one  is  acquired. 

"Whether  long  residence  with  a  fixed  purpose  to  return  at 
the  end  of  a  certain  time  is  enough  for  the  acquisition  of 
domicil  may  be  a  question.  The  Roman  law  denies  this 
character  to  students  who  remain  even  ten  years  away  from 
home  for  the  purpose  of  study,  J  on  the  ground,  no  doubt,  that 
they  never  intended  to  establish  themselves  in  the  place  of 
their  sojourn. 

The  subject  of  domicil  becomes  of  great  importance  when 
we  ask  who  is  an  enemy,  and  who  is  a  neutral.  This  bearing 

*  Savigny,  System  VIII.  §  359.  f  As  by  Story,  §  47. 

\  C.  J.  C.  10,  39.     L.  2,  de  incolis.     "Nisi  decem  annis  transacts  eo  loci  secies 
eibi  const! tuerint." 


§69  RELATIONS    OF   FOREIGNERS,    ETC.  109 

will  be  considered  when  we  reach  the  subject  of  the  effects  of 
war  upon  neutrals.  It  is  of  importance  also  in  another  depart 
ment  of  international  law,  to  which,  in  the  order  of  topics,  we 
are  now  brought. 

§68. 

A  man  may  change  his  domicil  from  one  country  to  an 
other,  and  may  hold  property  in  both  :  he  may  in  conflict  of  laws  a8 

,,  /,  ,    \       ,          «  ,/m     -,      .  to     a     particular 

a  third  execute  a  contract  to  be  lumllea  in  a  person. 
fourth :  he  may  inherit  from  relatives  in  another,  and  have 
heirs  in  another  still :  in  short,  with  the  increase  of  commerce 
and  of  emigration,  in  modern  times,  private  jural  relations 
stretch  far  beyond  the  bounds  of  any  one  territory,  where  an 
individual  has  his  domicil.  But  the  laws  of  these  countries 
and  their  judicial  procedures  may  differ  widely  from  one  an 
other.  "What  law  then  shall  rule  in  each  special  case,  where 
diverse  laws  come  into  conflict  ? 

A  simple  rule  would  be  to  apply  the  law  of  the  place  of 
the  court  (less  locifori,  or  lexfori  alone)  to  all  jural  relations 
coming  before  it.  A  nation  insisting  rigidly  on  its  own  sov 
ereignty  would  follow  such  a  rule.  But,  as  Savigny  remarks, 
modern  legislation  and  court-practice  aim  not  to  keep  up  local 
sovereignty  and  jurisdiction,  but  to  decide  without  respect  to 
territorial  limits,  according  to  the  inner  nature  and  needs  of 
each  jural  relation. 

§69. 

It  is  the  province  of  private  international  law  to  decide 
which  of  two  conflicting  laws  of  different  tern-  private  interaa. 
tories  is  to  be  applied  in  the  decision  of  cases;  tionallaw- 
and  for  this  reason  this  branch  is  sometimes  called  the  conflict 
of  laws.  It  is  called  private,  because  it  is  concerned  with  the 
private  rights  and  relations  of  individuals.  It  differs  from 
territorial  or  municipal  law,  in  that  it  may  allow  the  law  of 
another  territory  to  be  the  rule  of  judgment  in  preference  to 
the  law  of  that  where  the  case  is  tried.  It  is  international, 
because,  with  a  certain  degree  of  harmony,  Christian  states 


HO  EIGHT    OF    INTERCOURSE.  §69 

have  come  to  adopt  the  same  principles  in  judicial  decisions, 
where  different  municipal  laws  clash. 

It  is  called  law,  just  as  public  international  law  is  so  called ; 
not  as  imposed  by  a  superior,  but  as  a  rule  of  action  freely 
adopted  by  the  sovereign  power  of  a  country,  either  in  con 
sideration  of  its  being  so  adopted  by  other  countries,  or  of  its 
essential  justice.  And  this  adoption  may  have  taken  place 
through  express  law  giving  direction  to  courts,  or  through 
power  lodged  in  courts  themselves. 

The  foundation  of  this  department,  as  of  all  privileges 
granted  to  strangers,  is  not  generally  regarded  as  being  justice 
in  the  strict  sense,  but  the  humanity  and  comity  of  nations,  or, 
in  other  words,  the  recognition  of  the  brotherhood  of  men,  and 
the  mutual  duties  thence  arising.  Justice  may  close  the  ave 
nues  of  commerce,  and  insist  that  the  most  rigid  notion  of 
sovereignty  be  carried  out  in  practice,  but  goodwill  grants 
concessions  to  aliens,  and  meanwhile  enlightened  self-interest 
discovers  that  the  interests  of  all  are  alike  promoted.  But 
comp.  §  205. 

This  branch  of  the  law  of  nations,  almost  unknown  to  the 
Growth  of  private  Romans  and  to  mediaeval  jurisprudence,  has  been 
international  law.  g]owiy  growing,  in  the  hands  especially  of  the 
jurists  of  Holland,  France,  and  Germany,  since  the  middle  of 
the  seventeenth  century ;  but,  although  it  has  made  great  ad 
vances  within  the  last  age,  it  is  still  incomplete.  "  In  this 
doctrine,"  says  Savigny,  writing  in  1849,  "  and  especially  in 
the  first  half  of  it,  [which  treats  of  collisions  in  place,  as  the 
second  part,  according  to  the  division  of  this  eminent  jurist, 
treats  of  collisions  in  time],  hitherto  the  opinions  of  writers 
and  the  decisions  of  courts  run  confusedly  across  one  another ; 
the  Germans,  French,  English,  and  Americans  often  stand  on 
entirely  opposite  sides.  All,  however,  unite  in  a  common 
lively  interest  in  the  questions  which  here  arise, — in  the  en 
deavor  after  approximation,  removal  of  differences,  and  agree 
ment, — more  than  in  any  other  part  of  the  science  of  law. 
One  can  say  that  this  branch  of  science  has  already  become  a 
common  property  of  civilized  nations,  not  through  possession 


§  70  RELATIONS    OF    FOREIGNERS,    ETC. 

already  gained  of  fixed,  universally  acknowledged  principles, 
but  through  a  community  in  scientific  inquiries  which  reaches 
after  such  possession.  A  vivid  picture  of  this  unripe  but  hope 
ful  condition  is  furnished  by  the  excellent  work  of  Story,  which 
is  also  in  a  high  degree  useful  to  every  investigator,  as  a  rich 
collection  of  materials."  * 

The  details  of  private  international  law  belong  to  the  law 
yers  and  the  courts.  We  shall  confine  ourselves  Itg  leading  rules 
to  a  brief  sketch  of  the  leading  principles,  in  re-  and  PrinciPles- 
gard  to  which  the  legal  authorities  of  Christian  countries  are 
tolerably  harmonious ;  and  in  so  doing  shall  principally  follow 
the  eminent  Prussian  jurist  already  named,  the  eighth  volume 
of  whose  "  System  of  Roman  Law  of  the  Present  Day  "  is  devo 
ted  to  this  subject.  And  we  should  have  left  out  of  our  intro 
duction  to  the  science  of  international  law  all  notice  of  this 
branch,  as  many  have  done,  were  it  not  that  it  puts  in  a  strik 
ing  light  the  tendency  towards  a  common  acceptance  of  the 
same  principles  of  justice, — towards  a  brotherhood  of  nations 
under  the  same  rules  of  right. 

§70. 

A  principle  of  private  international  law  in  which  there  is  a 
general  agreement  is,  that  the  iural  capacity  of  a 

-i        -i  /»  i  .       T         .    .1      Personal  capacity. 

person  is  determined  by  the  law  of  his  domicil. 
Questions  such  as  those  of  citizenship,  minority,  legitimacy, 
lunacy,  the  validity  of  marriage,  the  legal  capacity  of  a  mar 
ried  woman,  belong  here.  Thus  a  person  having,  according  to 
the  laws  of  his  domicil,  reached  his  majority,  can  make  con 
tracts  which  are  binding  in  a  foreign  country,  although  persons 
of  the  same  age  domiciled  there  would  be  minors.  So  also  a 
woman  belonging  to  a  country  where  a  married  woman  «|Ji 
perform  legal  acts  of  herself,  can  do  this  in  a  country  where 
such  power  is  denied  to  married  women,  and  vice  versa. 

And  according  to  this  rule,  if  a  person  changes  his  domicil, 
he  acquires  a  new  jural  capacity,  by  which,  in  foreign  parts,  his 

*  For  a  classification  of  the  schools  or  theories  of  writers  on  private  interna 
tional  law,  see  Von  Mohl,  Gesch.  d.  Staatsw.  I.  441. 


112  RIGHT    OF    INTERCOURSE.  §  70 

actions  are  to  be  measured.  This  is  true  universally,  but  in 
many  cases  the  courts  of  the  earlier  domicil,  especially  if  it 
were  the  person's  native  country,  have  shown  a  leaning,  not  to 
be  justified,  towards  holding  him  under  their  territorial  law. 

The  reasons  which  justify  this  principle  are,  (1.)  that  other 
wise  extreme  inconvenience  would  "  result  to  all  nations  from 
a  perpetual  fluctuation  of  capacity,  state  and  condition,  upon 
every  accidental  change  of  place  of  the  person  or  of  his  mova 
ble  property."  *  (2.)  That  the  persdh  subjects  himself  and  his 
condition,  of  free  choice,  to  the  law  of  the  place  where  he 
resides,  by  moving  there  or  continuing  there. 

But  there  are  several  very  important  exceptions  to  the  rule, 
Exceptions  to  the  that  ^ne  %ex  domicUii  is  to  determine  in  regard 

rule  above  given.     ^  personal  status  and   j^  capacity.       These  6X- 

ceptions  arise  from  the  natural  unwillingness  of  nations  to  al 
low  laws  to  have  force  in  their  courts,  which  are  opposed  to 
their  political  systems,  or  to  their  principles  of  morality,  or 
their  doctrine  of  human  rights. 

1.  One  of  these  is,  that  if  a  person  suffers  in  his  status  at 
home  by  being  a  heretic,  a  country,  which  regards  such  disa 
bilities  for  such  a  reason  as  immoral,  and  perhaps  is  of  the  same 
religion  with  the  heretic,  cannot  permit  his  lex  domicilii  in 
this  point  to  have  any  effect  in  its  courts,  but  applies  its  own 
law. 

2.  Where  the  laws  forbid  or  limit  the  acquisition  of  prop 
erty  in  mortmain,  or  by  religious  houses,  ecclesiastical  founda 
tions  in  another  land  are  affected  by  such  limitations.     On  the 
contrary,  in  a  state  which  has  no  such  laws,  religious  corpora 
tions,  which  at  home  lie  under  restrictive  legislation,  are  ex 
empt  from  it. 

3.  A  man  passing  from  a  country  where  polygamy  has  a 
al  sanction  into  a  state  under  Christian  law,  can  obtain  no 

protection  for  his  plurality  of  wives :  the  law  not  of  his  domicil 
but  of  the  place  where  the  judge  lives  must  govern. 

4.  "  So  in  a  state  where  negro-slavery  is  not  tolerated,  a 
negro  slave  sojourning  there  cannot  be  treated  as  his  master's 

*  Story,  Chap.  IV.  §  67. 


§70  RELATIONS    OF    FOREIGNERS,    ETC.  H3 

property, — as  destitute  of  jural  capacity."  And  this  for  two 
reasons  :  "  Slavery  as  a  legal  institution  is  foreign  to  our  polity, 
is  not  recognized  by  it ;  and  at  the  same  time  from  our  point 
of  view  it  is  something  utterly  immoral  to  regard  a  man  as  a 
thing."  So  Savigny.*  To  the  same  purport  Fcelix  says :  "  On 
ne  reconnait  pas  aux  etrangers  le  droit  d'amener  des  esclaves, 
et  de  les  trailer  comme  tels."  And  to  the  same  effect  Heffter. 
"  JSTo  moral  state  can  endure  slavery.  In  no  case  is  a  state 
bound  to  allow  the  slavery  which  subsists  in  other,  although 
friendly,  lands,  to  have  validity  within  its  borders."  f 

This  principle  is  received  into  the  practice  of  the  leading 
nations.  The  maxim  that  the  "  air  makes  free,"  has  long  been 
acted  upon  in  France ;  it  prevails  in  Great  Britain,  and  with 
slight  modifications  in  Prussia.  So  if  a  cargo  of  slaves  is 
stranded  on  the  soil  of  a  state,  which  does  not  recognize  the 
status  of  slavery  in  its  institutions  and  laws,  there  is  no  process 
under  international  law,  excepting  treaty  made  for  that  ex 
press  purpose,  by  which  they  can  be  prevented  from  availing 
themselves  of  their  freedom,  or  by  w^hich  the  owner  can  recover 
them  as  his  property.  There  is  a  close  analogy  between  the 
condition  of  such  slaves  on  a  foreign  soil  and  that  of  prisoners- 
of  war  in  a  neutral  port,  escaping  on  shore  from  the  vessel 
where  they  are  confined,  who  cannot  be  recaptured,  since 
they  enjoy  the  benefit  of  the  right  of  postliminy.  (§  134.)  So 
also  when  a  master  freely  brings  his  slaves  into  a  jurisdiction 
where  slavery  is  unknown,  he  can  neither  legally  act  the  mas 
ter  there,  nor  force  them  away  with  him  to  his  own  domicil. 
They  may  acquire  a  domicil  like  any  other  person  in  the  ter 
ritory  where  they  are  thus  sheltered,  and  should  they  revisit 
the  country  of  their  enthralment,  the  lex  domicilii  would  now 
determine  their  status  to  be  that  of  freemen.^ 

*  VIII.  §§  349,  365.     Comp.  Story,  §  96. 

f  Foelix,  u.  s.  I.  30,  §  15 ;  Heffler,  §  14.     Comp.  §  138  infra. 

\  Comp.  the  Louisiana  Reports,  vol.  13,  p.  441,  where  it  is  held,  that  "where  a 
slave  was  taken  from  Louisiana,  with  the  consent  of  the  owner,  to  France,  although 
afterwards  sent  back  here,  she  was  thereby  entitled  to  her  freedom,  from  the  fact  of 
having  been  taken  to  a  country  where  slavery  is  not  tolerated,  and  where  the  slave 
becomes  free  by  landing  on  the  French  soil."  Priscilla  Smith  v.  Smith.  So  in  the 
8 


114  RIGHT    OF    INTERCOURSE.  §  70 

The  case  of  the  Creole  presents  an  extreme  example  of  this 
Case  of  the  refusal  on  the  part  of  nations  to  recognize  the  law 
of  the  domicil  where  it  sanctions  slavery.  This 
vessel,  containing  slaves  in  transportation  from  one  port  of  the 
United  States  to  another,  was  by  their  act  forced  to  put  into  a 
port  of  the  Bahama  islands  in  the  winter  of  1841-2.  The 
slaves  having  secured  for  themselves  a  refuge  on  shore,  the 
colonial  authorities,  and  afterwards  the  British  government, 
refused  to  give  them  up,  as  heing  free  persons.  If  the  slaves 
had  merely  fled  to  British  territory,  it  was  conceded  that  they 
could  not  be  demanded  back.  But  it  was  contended  by  Mr. 
Webster,  that  the  law  of  nations  exempts  from  interference 
property  on  vessels  driven  into  foreign  ports  by  disasters  of  the 
sea,  or  carried  there  by  unlawful  force.*  This  exemption  from 
territorial  law  is  undoubtedly  made  by  the  law  of  nations. 
(Comp.  §  64.)  But  the  question  is,  whether  such  a  rule  of 
comity  and  humanity  should  override  a  greater  act  of  human 
ity  and  compel  the  territorial  authorities  to  use  force  in  order 
to  prevent  the  slaves  from  .retaining  their  liberty.  By  what 
process  could  this  be  done  in  a  land  where  slavery  is  unknown, 
and  how  could  a  passenger  be  required  to  return  on  board  a 
certain  vessel  which  he  had  left  ? 

It  is  to  be  observed,  however,  in  regard  to  applications  of 
foreign  law,  which  the  moral  sense  or  political  principles  of  a 
nation  reject,  that  questions  growing  out  of  a  status  which  can 
not  be  recognized  by  the  courts,  if  they  do  not  affect  the  per 
sonal  capacity  itself,  may  be  decided  according  to  the  foreign 
law.  Thus  a  contract  relating  to  the  sale  and  purchase  of 
slaves  might  be  held  legal,  if  legal  in  the  domicil  of  the  con 
tracting  parties.  And  it  is  probable  that  the  children  of  a  poly- 
gamist  Turk,f  by  a  second  or  third  wife,  would  not  be  treated 
as  bastards  in  all  respects  by  Christian  courts. 

case  of  Eliz.  Thomas  v.  Generis  et  al.  (vol.  16,  p.  483,  of  the  same  Reports),  it  is 
held,  that  a  slave  taken  to  the  State  of  Jllinois,  with  express  or  implied  consent  of 
her  master,  became  free,  and  being  once  free,  could  not  again  be  made  a  slave  by 
removing  her  to  a  slave  State. 

*  Webster's  Letter  to  Ashburton.    Works,  VI.  pp.  303-313. 

f  Comp.  Demangeat  on  Foelix,  I.  29. 


§71  RELATIONS    OF  '  FOREIGNERS,    ETC. 

§71. 

II.  The  general  leaning  has  been  toward  the  rule  that  mov 
able  property  follows  the  law  of  the  owner's  dom-  Righta  of  prop_ 
icil,  while  immovable  follows  the  law  of  the  place  crty> 
where  it  lies  (the  lex  loci  rei  sitce,  or,  briefly,  lex  rei  sitoe).  But 
Savigny  and  others,  especially  German  lawyers,  contend  that 
in  all  cases  the  lex  rei  sitce  should  be  followed.  A  compara 
tively  modern  maxim,  that  mobilia  ossibus  inhcerent,  or  that  a 
man's  movables  should  be  conceived  of  as  passing  with  him 
wherever  he  dwells,  expresses  the  former  view,  which  is  fol 
lowed  in  our  country.  Against  this,  however,  there  are  serious 
objections. 

1.  The  proper  seat  of  the  light  to  a  thing  is  the  place  where 
it  is.     "  He  who  wishes  to  gain,  have,  or  exercise  a  right  to  a 
thing  betakes  himself  for  this  end  to  its  place,  and  subjects 
himself  voluntarily  to  the  local  law  which  rules  where  the  thing 
is  situated."  *     There  is  the  same  reason  for  voluntary  submis 
sion  to  law  in  this  case  as  there  is  why  the  lex  domicilii  should 
govern  in  respect  to  personal  capacity. 

2.  It  is  often  difficult  to  say  whose  domicil  is  to  condition 
the  law, — i.  e.  what  person  is  meant.     If  we  say  the  proprie 
tor's,  it  is  doubtful  in  transfers  of  property  whether  the  old  or 
the  new  owner  is  intended  ;  and  so  in  suits  concerning  proper 
ty,  which  of  the  two  litigant  claimants  ought  to  have  the  law 
of  his  domicil  followed. 

3.  There  are  two  extremes  of  movable  property, — the  one 
nearly  as  fixed  in  place  as  real, — of  which  kind  are  furniture, 
libraries,  museums,  etc., — and  the  other  so  changeable  in  place 
that  no  particular  lex  loci  can  be  applied  to  them.     Such  are 
travellers'  luggage,  and  merchants'  wares  sent  abroad.     In  the 
former  case,  no  reason  can  be  given  why  law  should  treat  the 
things  in  question  otherwise  than  it  treats  real  estate.     In  the 
latter,  the  lexloci  must  be  determined,  by  enquiring  what  is  the 
spot  where  the  owner  wishes  that  they  should  rest  and  change 
place  no  longer.     If  this  is  his  domicil,  the  lex  domicilii  and 

*  Savigny,  u.  s.,  §  366,  page  169,  seq. 


116  RIGHT    OF    INTERCOURSE  §  71 

lex  rei  sitce  coincide.  If  not,  lie  shows  an  intention  of  submit 
ting  to  a  certain  other  lex  rei  sitce. 

The  capacity  of  a  person  to  acquire  or  to  part  with  prop 
erty  is  to  be  decided  according  to  the  law  of  the  domicil,  since 
this  is  a  capacity  which  follows  the  rule  already  laid  down 
touching  personal  capacity. 

The  capacity  of  a  thing  to  become  private  property  follows 
the  lex  rei  sitce.  And  the  same  is  to  be  said  in  regard  to  the 
power  of  acquiring  and  the  restrictions  on  acquiring  by  occu 
pation. 

As  to  the  forms  of  free  transfer  of  property,  there  is  great 
diversity  of  practice.  Savigny  contends  that  the  same  prin 
ciple  of  the  lex  rei  slice  should  be  followed,  without  respect  to 
the  domicil,  or  the  place  where  Ihe  contract  was  concluded. 

As  regards  prescriptive  right  to  real  property,  all  agree 
that  to  this  the  lex  rei  sitce  must  be  applied.  Opinions,  how 
ever,  differ  as  to  the  law  which  ought  to  regulate  the  title  to 
movables  so  acquired,  as  much  as  the  laws  of  different  nations 
vary  from  one  another.  "  Roman  law  demands  possession  for 
three  years  before  a  title  can  vest ;  Prussian  for  ten  ;  French, 
in  the  case  of  things  stolen  or  lost,  for  three ;  and,  in  other 
cases,  shuts  off  the  prior  owner's  right  of  suit  as  proprietor  at 
the  commencement  of  the  possession."  *  Now,  as  the  title 
here  depends  on  possession,  which  is  a  mere  fact,  it  is  plainly 
reasonable  that  the  law  where  the  fact  occurs  should  be  applied 
in  questions  of  usucapion  or  prescription,  which  is  right  grow- 
out  of  a  continued  fact. 

The  prosecution  of  claims  to  property  is  regulated  by  the 
laws  of  the  place  where  the  suit  is  brought,  (the  lexfori^)  which 
may  bo,  however,  either  the  locus  rei  sitce,  or  the  defendant's 
domicil. 

Jura  in  re,  or  rights  inhering  in  things  without  ownership, 
as  servitudes  on  land,  right  of  cultivating  or  building  on  the 
land  of  others,  (emghyteusis  and  superficies})  etc.,  follow  the 
same  rule,  i.  e.  are  determined  by  the  lex  loci. 

*  Savigny,  u.  s.,  p.  186,  §  367.  The  French  law  is  (Code  civile,  art.  2279,)  "eu 
fait  de  meubles  la  possession  vaut  titre." 


§  72  RELATIONS    OF    FOREIGNERS,    ETC.  117 


III.  In  cases  of  obligation  it  is  of  importance  to  decide 
what  is  the  proper  court  before  which  the  obliga-  ^ight  of  obliga_ 
tion  ought  to  be  brought,  (the  forum  contractual)  tlon- 
and  what  is  the  law  there  to  be  applied,  (a.)  To  determine 
the  court  it  is  necessary  to  ask  what  is  the  seat  or  place  of  an 
obligation,  with  what  spot  of  earth  this  incorporeal  act  is  most 
closely  connected.  There  are  two  seats  which  can  be  thought 
of,  —  that  where  the  obligation  is  begun,  and  that  where  it 
receives  its  fulfilment.  The  place  where  an  obligation  is  as 
sumed,  however,  is  in  itself  accidental,  unessential,  and  with 
out  influence  on  the  subsequent  steps  in  the  completion  of  the 
contract.  Unless,  therefore,  some  definite  expectation  of  the 
parties  connects  their  transaction  by  an  important  link  with 
this  place,  it  must  be  decided  that  the  place  of  the  fulfilment 
of  the  obligation,  which  gives  the  act  body  and  substance, 
ought  to  determine  the  court  where  he  who  complains  of  the 
non-fulfilment  of  it  should  bring  his  suit. 

But  what  is  the  place  of  fulfilment  ?  It  is  to  be  known 
from  the  express  or  tacit  will  of  the  parties.  (1.)  When  that 
will  is  made  known,  or  when,  though  not  expressed,  it  can 
refer  only  to  a  definite  place,  —  as  in  contracts  for  the  repair  of 
a  house,  or  the  rent  of  a  house  or  grounds,  or  in  guardianship, 
and  in  general  and  special  agencies,  —  there  is  no  difficulty  in 
regard  to  place.  (2.)  "Where  a  debtor  changes  his  domicil  be 
fore  paying  the  debt,  the  court  is  that  of  his  former  domicil, 
because  the  expectation  of  the  parties  had  fastened  on  'this,  as 
the  place  where  the  obligation  would  be  discharged.  (3.)  If  a 
person  away  from  his  domicil  assumes  an  obligation,  it  may  be 
that  the  circumstances  create  an  expectation  that  the  place  of 
the  origin  of  the  obligation  will  be  the  place  of  fulfilment,  or 
it  may  not  be.  Here  the  general  rule  holds.  Thus  a  man, 
during  a  sojourn  at  mineral  springs,  may  incur  a  debt  for  his 
board  and  lodging,  and  may  make  contracts  of  business  at  the 
same  place.  It  is  clear  that  this  is  the  place  of  fulfilment  in 
the  first  case,  and  need  not  be  in  the  last.  (4.)  In  cases  where 
no  definite  place  of  fulfilment  can  be  derived  frcm  the  terms 


118  RIGHT    OF    INTERCOURSE.  §  72 

of  the  obligation,  the  forum  contractus  must  be  the  domicil  of 
the  debtor. 

(#.)  The  same  rules  which  apply  to  the  court  apply  to  the 
law  which  is  to  be  used  in  its  decisions.  Thus,  (1.)  If  the 
contract  mentions,  or  necessarily  implies  a  particular  place  of 
fulfilment,  the  law  of  that  place  is  to  rule.  (2.)  If  the  obliga 
tion  grows  out  of  a  continuous  course  of  business  of  the  obli 
gated  person,  the  law  of  the  place  where  the  business  is  carried 
on  must  be  applied.  (3.)  If  the  obligation  has  arisen  out  of  a 
single  act  of  the  obligated  person  in,  his  domicil,  the  law  there 
must  prevail,  although  he  change  his  domicil  afterward.  (4.) 
If  the  obligation  arise  from  a  single  act  of  a  person  away  from 
his  domicil,  and  under  circumstances  implying  the  fulfilment 
in  that  place  of  temporary  sojourn,  the  law  of  that  place  must 
govern  in  judicial  decisions.  (5.)  If  none  of  these  suppositions 
are  true,  a  suit  must  be  regulated  by  the  law  of  the  obligated 
person's  domicil,  since  there  is  a  presumption,  where  no  other 
place  or  local  law  can  be  assigned  to  the  fulfilment,  that  it  was 
expected  to  come  to  pass  there. 

It  is  to  be  observed,  however,  that  the  complainant  may 
bring  his  suit  likewise  before  the  court  of  the  domicil  of  the 
defendant,  i.  e.  he  may  choose  between  two  forums ;  but,  in 
either  case,  the  law  must  be  applied  as  has  been  just  laid 
down,  that  is,  the  law  of  the  place  of  fulfilment  of  the  obliga 
tion,  or,  in  default  of  any  fixed  place,  the  place  whose 
law  is  naturally  to  be  presumed  or  the  domicil  of  the 
debtor. 

If,  again,  the  application  of  the  above-mentioned  rules 
would  subject  a  contract  to  laws  which  would  make  it  invalid, 
while,  by  the  law  of  the  domicil,  it  would  be  binding,  it  is 
certainly  to  be  presumed  that  it  was  not  the  intention  of  the 
parties  to  subject  themselves  to  laws  which  would  render  their 
own  purpose  nugatory. 

Capacity  to  incur  obligations  is  determined  by  the  law 
governing  the  person  concerned,  that  is,  the  law  of  his  domicil. 

The  interpretation  of  contracts  is  controlled,  according  to 
the  prevailing  opinion,  by  the  law  and  custom  of  the  place  of 


§  73  RELATIONS    OF    FOREIGNERS,    ETC.  119 

performance.*  But  Savigny  remarks  that  the  problem  here  is 
not  to  find  out  a  rule  of  law,  but  to  find  out  the  true  intention 
of  the  parties,  according  to  rules  of  interpretation  which  are 
of  a  universal  nature. 

The  validity  of  an  obligation  depends  partly  on  the  form, 
partly  on  the  substance.  For  the  former,  compare  what  is  said 
below  in  §  75.  The  substantial  validity  generally  depends 
on  the  law  of  the  place  which  controls  the  obligation.  When 
ever  a  law  of  a  strictly  positive  nature  opposes  the  matter  of 
the  contract,  the  lexfori  cont/ractus  must  be  applied.  Thus  if 
a  suit  for  interest  due  on  money  be  brought  in  a  place  where 
the  usury  laws  would  render  such  a  transaction  void,  the  judge 
must  follow  his  own  law.f 

In  cases  of  bankruptcy,  where  great  differences  of  legisla- 
tion  exist,  a  simple  rule  would  be  that  the  courts  of  the  in 
solvent's  domicil  should  settle  claims  and  distribute  assets, 
whether  domestic  or  foreign.  But  here  there  is  a  complication 
of  difficulties.  The  creditors  are  of  various  kinds, — some 
privileged,  some  unprivileged,  some  having  a  simple  claim  of 
debt,  others  with  a  lien  also  on  the  insolvent's  property,  etc. 
And  this  property  may  be  immovable  property  in  a  foreign 
land.  Moreover,  the  foreign  sovereign  and  courts  often  refuse 
to  act  in  harmony  with  the  coart  of  the  bankrupt's  domicil. 
In  these  circumstances,  some  authors  hold  that  the  bankrupt's 
court  ought  to  throw  out  of  view  foreign  property,  and  that  the 
creditors  ought  to  sue  in  every  jurisdiction  where  the  debtor's 
property  lies.  The  English  courts,  in  distributing  a  bankrupt's 
assets,  include  foreign  movable  property  only ;  most  of  those 
of  the  United  States,  neither  movable  nor  immovable.  Sa 
vigny  contends  that  it  is  feasible  for  the  forum,  domiciliilo  act 
alone  in  cases  of  bankruptcy,  these  questions  of  difficulty  as  to 
foreign  property  notwithstanding. 

§T3. 

IY.  The  appropriate  seat  of  the  right  of  succession,  inas 
much  as  it  adheres  to  the  person  deceased,  is  his  Rigl)t  of  ,ucce9. 
place  of  abode ;  and  therefore  the  law  of  the  domi-  8ion- 

*  Comp.  Story,  u.  s.,  §  272,  §  280. 

f  Savigny,  u.  s.,  §  374,  page  277.     But  comp.  Story,  §§  303-305. 


120  RIGHT    OF    INTERCOURSE.  §  73 

cil.  that  is,  of  the  domicil  which  the  testator  had  at  his  death, 
ought  to  control  in  suits  growing  out  of  this  right.  No  other 
law  can  claim  to  compete  with,  or  prevail  over  it,  unless  it  be 
the  lex  rei  sitce,  the  law  of  the  place  where  the  inheritance  lies. 
But  the  estate,  as  a  whole,  or  the  inheritance,  is  something 
ideal,  consisting  of  things  in  various  places  and  of  various 
rights  in  things,  claims,  etc.  ~No  place,  therefore,  can  be 
found,  saving  the  domicil  of  the  deceased  man. 

And  yet  there  has  been  in  practice  no  general  observance 
of  this  rule.  In  former  times  the  practice  was  to  apply  the 
principle  of  territoriality  to  every  piece  of  property,  of  which 
the  right  of  aubaine,  as  explained  above  (§  63),  was  an  extreme 
instance.  In  more  recent  times,  English,  French,  and  our  own 
courts  apply  the  law  of  the  domicil  in  cases  of  succession  to 
all  movable  property  wherever  situate,  and  the  law  of  the 
situation  (lex  loci)  to  immovable  property.  In  Germany,  since 
the  beginning  of  the  present  century,  this  distinction  between 
the  two  kinds  of  property  is  less  and  less  observed,  and  the  law 
of  the  domicil  is  applied  to  the  whole  of  an  estate. 

The  court  to  which  testaments  and  intestate  estates  belong, 
is  that  of  the  last  domicil  of  the  deceased  proprietor. 

The  capacity  of  a  testator  to  make  a  will  so  far  as  it  de 
pends  on  his  jural  condition  or  state,  may  be  under  the  terri 
torial  law  of  two  places, — that  of  his  domicil  at  the  time  of 
making  the  will,  and  that  of  his  domicil  at  the  time  of  his 
decease.  If  invalid  according  to  either  of  these  laws,  the  will 
is  defective.  Thus,  a  will  would  be  invalid,  if,  by  the  law  of 
either  of  these  places,  the  power  of  making  testaments  is  not 
vested  in  private  persons,  and  succession  is  regulated  by  intes 
tate  laws  alone.  The  capacity  in  respect  to  physical  qualities, 
as  age,  etc.,  depends  on  the  law  of  the  domicil  where  the  will 
was  made.  The  same  law,  for  the  most  part,  regulates  the 
substance  of  wills  and  their  interpretation. 

The  personal  capacity  of  persons  to  whom  property  is  de 
vised,  heirs  or  legatees,  is  judged  of  by  the  laws  of  the  domicil 
which  they  had  at  the  time  of  the  testator's  death.  But  when 
laws  in  their  domicil,  contrary  to  the  moral  or  political  ideas 


§74  RELATIONS    OF    FOREIGNERS,    ETC.  121 

prevailing  where  the  testator  lived,  would  cut  them  off,  the 
law  of  the  court  which  examines  the  will,  i.  e.  commonly  of 
the  testator's  domicil,  must  have  application. 

§74. 

Y.  Family  rights,  (a.)  Marriage.     There  is  no  doubt  that 
the  proper  seat  of  matrimonial  relations  is  the  hab 
itation  of  the  husband  as  the  head  of  the  family. 
The  law  of  his  domicil  must  be  followed,  and  the  law  of  the 
place  where  the  marriage  was  performed,  so  far  as  defining  the 
relations  is  concerned,  is  of  no  importance.     In  England  and 
the  United -States  the  doctrine  is  held,  that  the  validity  of  mar 
riage  contracts  must  be  tried  by  the  law  of  the  country  where 
the  marriage  was  celebrated.* 

The  hindrances  to  marriage  depend  in  part  on  the  personal 
quality  of  each  of  the  parties ;  in  part,  on  their  relationship  to 
one  another.  On  general  principles  we  might  expect  that  the 
condition  of  the  woman,  according  to  the  laws  of  her  country, 
ought  here  to  come  into  view.  But  as  the  laws  regulating  the 
possibility  of  marriage  depend  on  the  moral  and  religious  views 
of  each  particular  country,  it  must  follow  that  the  legal  hin 
drances  at  the  domicil  of  the  man  alone  are  to  be  regarded, 
and  not  those  in  the  home  of  the  bride,  or  at  the  place  where 
the  marriage  ceremony  occurred.  In  the  matter  of  impedi 
ments  to  marriage  the  practice  of  nations  differs  widely. 

As  to  the  formalities  necessary  for  the1  celebration  of  a  mar 
riage,  the  general  doctrine  is  that  the  lex  loci  contractus  must 
decide.  Savigny,  however,  thinks,  that  where  an  inhabitant  of 
a  state  which  requires  religious  ceremonies  of  marriage,  forms 
a  civil  marriage  in  a  foreign  country  according  to  its  laws,  this 
is  not  enough ;  on  the  ground  that  the  laws  of  his  domicil  have 
a  moral  and  religious  basis,  and  hence  a  coercive  character. 
The  marriage  ought  to  be  celebrated  anew  according  to  the 
religious  forms  of  the  man's  own  domicil. 

It  is  much  disputed  what  law  ought  to  be  followed  where 

*  Cornp.  Story,  §  89  ;  Fcelix,  II.  493. 


122  RIGHT    OF    INTERCOURSE.  +  §  74 

the  rights  of  property  of  the  married  pair  are  called  in  ques 
tion.  Here,  too,  the  greatest  differences  exist  between  the 
law  of  different  countries.  The  points  especially  in  debate 
are,  (1.)  whether  foreign  property,  as  well  as  domestic,  should 
follow  the  lex  domicilii  of  the  husband.  Story  contends  against 
this,  and  in  favor  of  following  here  the  lex  rei  sites;  Savigny 
and  Foelix  would  have  the  law  of  the  domicil  control  through 
out.  (2.)  "What  is  to  be  done  if  the  domicil  is  changed  during 
marriage  ?  Here  some  maintain  that  the  law  of  the  prior  dom 
icil,  and  others  that  of  the  new  domicil  should  be  followed. 
Others  still  claim  that  the  law  of  the  new  domicil  should  be 
applied  to  the  property  acquired  since  the  change  of  residence, 
and  the  law  of  the  earlier  to  all  held  before  the  change.  Sa 
vigny  holds,  that  at  the  time  of  marriage,  there  was  a  tacit 
subjection  of  both  parties  to  the  law  of  their  habitation,  which 
ought,  therefore,  to  be  enforced  afterwards.  A  new  law  might 
place  the  wife  in  a  worse  condition  than  she  had  expected  at 
the  time  of  marriage. 

Intestate  succession  between  a  married  pair  is  controlled  by 
the  law  of  the  last  domicil  of  the  deceased  party. 

Divorce,  on  account  of  its  relations  to  morals  and  religion, 
is  the  subject  of  strict  positive  law,  which  the  judge  of  the  place 
where  that  law  reigns  must  follow.  This  law  will  be  that  of 
the  present  domicil  of  the  husband  ;  for  the  laws  of  the  earlier 
domicil  can  have  given  neither  of  the  married  parties  a  right, 
or  even  a  well-grounded  expectation  of  being  separated  here 
after  by  the  rules  there  prevailing,  since  the  above-mentioned 
peculiar  character  of  divorce  laws  leads  to  an  opposite  infer 
ence.  In  regard  to  divorce,  the  opinions  of  writers,  and  the 
decrees  of  courts,  vary  exceedingly  from  one  another. 

(J.)  Guardianship.  The  guardian  empowered  according  to 
the  law  of  the  ward's  domicil,  which  will  usually  be  that  of 
the  deceased  parent,  exercises  control  over  the  ward's  property 
wherever  situated.  But  in  the  case  of  immovable  property, 
the  lex  rei  sites  may  prevent  such  control  of  a  foreigner, 
and  it  may  be  necessary  to  appoint  a  special  guardian  resi 
ding  within  the  jurisdiction.  In  the  United  States,  the  power 


§  76  RELATIONS    OF    FOREIGNERS,    ETC.  123 

of  guardians  is  considered  as  strictly  local ;  they  can  exercise 
control  neither  over  the  person,  personal  property,  nor  real 
property  of  wards,  in  other  states.* 

§T5. 

VI.  Acts  having  a  legal  validity  are  everywhere  reduced 
to  certain  forms ;  a  certain  number  of  witnesses  Formg  of  legal 
is  required  to  prove  them ;  a  certain  magistrate  acts< 
to  authenticate  them.  Now  if  the  law  of  every  state  demand 
ed  that  a  document,  to  be  legal,  should  have  the  form  required 
within  its  jurisdiction,  there  would  be  endless  embarrassment, 
and  sometimes  legal  acts  could  not  be  performed  at  all.  Thus, 
a  Prussian  cannot  make  a  will  when  at  home  without  the  in 
tervention  of  a  court,  while  in  France  the  formalities  of  wills 
belong  to  notaries  alone.  Hence,  if  Prussia  insisted  that  her 
legal  forms  should  be  necessary  in  all  wills  wherever  made,  a 
Prussian  stranger  in  France  could  not  make  one,  to  the  great 
detriment,  it  might  be,  of  his  family.  The  general  rule,  there 
fore,  that  has  been  adopted  is  that  locus  regit  actum,  or  that 
the  law  and  nsage  of  the  place  where  a  legal  act  is  performed, 
determines  its  validity,  that  is,  that  an  act  which  is  authentic 
in  its  own  place  is  so  everywhere.  Any  other  rnle  would  call  in 
each  place  for  the  knowledge  of  the  formalities  necessary  in 
every  place.  It  is  to  be  assumed  that  the  laws  of  all  civilized 
countries,  however  they  may  differ  from  each  other,  aim  to 
give  the  due  solemnity  and  certainty  to  legal  acts  and  docu 
ments.  This  rule  has  little  application  within  the  province  of 
personal  status  and  of  rights  to  things.  Its  importance  con 
sists  in  its  application  to  obligations,  testaments,  and  marriages. 

§76. 

The  comity  of  nations  allows  to  strangers  a  free  use  of  the 
courts  of  each  other's  country.     In  France,  how-  use  of  courts  ai 

j?  i     •  -uv        i  1     *          lowcd    to     etran' 

ever,  a  foreigner  bringing  a  suit  is  obliged  to  fur-  gers. 

nish  security  that  the  costs  of  suit  will  be  satisfied ;  while  the 

native  Frenchman  is  not  obliged  to  do  this.     The  same  rule 

*  Story,  §§  499,  504.  ' 


124  RIGHT    OP   INTERCOURSE.  §76 

prevails  in  some  other  countries  on  the  continent.  But  to  this 
rule,  there  are  in  France  two  exceptions  apart  from  exemptions 
by  treaty ;  one  in  commercial  transactions ;  the  other  where 
the  foreign  demandant  possesses  in  the  realm  immovables  of 
sufficient  value  to  pay  expenses.  The  same  rule  holds  in  Eng 
land,  where  the  foreigner  himself  is  not  actually  in  the  country. 

In  most  countries,  free  use  of  the  courts  is  given  to  stran 
gers  not  domiciled,  if  they  have  occasion  to  bring  suits  in  per- 
sonam*  against  such  other  strangers.  In  France,  however, 
this  humane  provision  does  not  exist  except  in  the  case  of  for 
eign  merchants,  and  where  treaties  provide  for  such  protection. 
The  doctrine  is  that  foreigners  in  such  complaints  must  invoke 
the  aid  of  their  own  courts  or  that  of  the  defendant  party. 

In  suits  against  foreigners  the  practice  of  nations  differs. 
Buits  against  for-  ^  countries  under  Roman  law,  the  maxim,  actor 
cigners.  sequitur  forum  rei,  generally  prevails ;  that  is,  the 

plaintiff  must  sue  in  the  court  of  the  defendant's  domicil.  In 
countries  under  English  law,  however,  personal  actions  "  may 
be  brought  in  the  domestic  forum,  whoever  may  be  the  parties 
and  wherever  the  cause  of  action  may  originate."  "All  real 
and  possessory  actions  must  be  brought  in  the  place  where  the 
property  lies.f "  The  rule  embodied  in  the  maxim  above- 
mentioned  admits  of  exceptions  where  it  is  followed.  Thus,  in 
France,  a  Frenchman  may  summon  a  foreigner,  even  one  not 
resident  in  France,  before1  the  French  tribunals  for  the  fulfil 
ment  of  obligations  by  him  contracted  towards  the  Frenchman, 
whether  within  or  without  the  realm.  J 

The  maxim  locus  regit  actum  will  imply  that  testimony  in 
writing,  and  all  documents,  in  the  form  proper  at 

Proofs.  7      .        n  T , .  ,    .          ,, 

any  place,  ought  to  be  received  as  valid  in  all 
other  courts.  The  same  law-maxim,  perhaps,  may  be  used  to 
answer  the  enquiry  what  weight  is  to  be  given  to  parol  evi 
dence,  in  regard  to  facts  occurring  abroad,  by  the  courts  of 
countries  where  such  evidence  is  not  usually  admissible.  As 
testimony  by  witnesses  is  a  satisfactory  form  of  proof  in  the 
foreign  country  in  regard  to  a  given  fact,  wrhy  should  it  not  be 

*  Story,  §§  542,  543        \  Wheaton,  II.  2,  §  20.       \  Foelix,  I.  §§  169-186. 


§77          RELATIONS  OF  FOREIGNERS,  ETC.          125 

received  as  such  in  other  countries  where  the  same  facts  come 
before  the  courts?  Such,  indeed,  is  the  opinion  generally 
adopted.* 

Many  countries  aid  one  another's  judicial  proceedings  by 
consenting  that  their  judges  may  acce'pt  rogatory  R0?atory  commig. 
commissions,  or  act  as  agents  of  foreign  courts  for  6ion9- 
the  purpose  of  examining  witnesses  or  otherwise  ascertain 
ing  facts.  These  are  acts  of  reciprocal  comity,  which  cannot 
extend  to  cases  where  the  interrogation  would  be  prejudicial 
to  public  or  private  rights.  Such  commissions  are  not  in  vogue 
in  England  and  the  United  States,  says  Foelix,  where,  conse 
quently,  if  foreign  testimony  is  to  be  taken,  some  agent  of  the 
court,  who  has  no  power  to  compel  witnesses  to  testify,  is  de 
puted  to  take  the  evidence  in  the  foreign  country,  f 

§77. 

The  judgment  of  a  court  and  the  execution  of  it  are  acts 
of  sovereignty.  Comity  alone  gives  them  effect  Affect  of  foreign 
out  of  the  country  where  they  originate.  Many  Judsraents- 
writers  on  international  law  maintain  that  a  definitive  decision 
by  a  competent  court  in  a  foreign  country,  under  due  forms  of 
law,  and  where  opportunity  of  appeal  is  allowed,  ought  to 
stand  and  receive  its  execution  in  any  other  country,  as  much 
as  the  decisions  of  its  own  tribunals, — provided,  however,  that 
such  judgment  contain  nothing  contrary  to  the  interests  or 
rights  of  the  foreign  country.  This  principle  has  passed  in  a 
degree  into  the  laws  and  practice  of  the  European  states. 
Some  of  them  have  adopted  in  this  respect  the  rule  of  recipro 
city.  France,  on  the  other  hand,  takes  ground  which  greatly 
restricts  the  effects  of  foreign  judgments  within  her  borders. 
An  ordinance  of  1629,  still  in  force,  prescribes,  that  judgments 
rendered  in  foreign  sovereignties,  shall  have  no  execution  in 
France,  and  that  subjects  of  the  French  king,  against  whom 
they  are  rendered,  may  bring  their  cases  up  anew  for  revision 
before  the  tribunals  of  their  own  country.  According  to  M. 
Foelix,  this  law  does  not  prevent  judgments  rendered  against  a 

*  Foelix,  I.  §  233  f  Foelix,  I.  §  241. 


126  RIGHT  OF  INTERCOURSE. 

stranger  from  being  executed  in  France,  if  judged  not  inconsist 
ent  with  the  rights  and  interests  of  the  nation.  England  again 
takes'a  third  position.  He  who  has  obtained  a  foreign  judg 
ment  in  his  favor,  brings  before  the  court  a  claim  to  the  thing 
adjudged  to  him.  The  foreign  judgment  is  regarded  as  a  deci 
sive  proof  of  the  justice  of  the  claim,  unless  some  irregularity 
can  be  shown  by  the  opposite  party.* 

§  78. 

Each  nation  has  a  right  to  try  and  punish  according  to  its 
crimes  committed  own  laws  crimes  committed  on  its  soil,  whoever 

in  a  foreign  coun-  7 

try.  may  be  the  perpetrator.     But  some  nations  ex 

tend  the  operation  of  their  laws,  so  as  to  reach  crimes  commit 
ted  by  their  subjects  upon  foreign  territory.  In  this  procedure 
municipal  law  only  is  concerned,  and  not  international ;  and, 
as  might  be  supposed,  laws  greatly  differ  in  their  provisions. 
(1.)  One  group  of  states,  including  many  of  the  German  states, 
some  of  the  Swiss  cantons,  Naples,  Portugal,  Russia,  and  Nor 
way,  punish  all  offences  of  their  subjects,  committed  in  foreign 
parts,  whether  against  themselves,  their  subjects,  or  foreigners, 
and  this  not  in  accordance  with  foreign  but  with  domestic 
criminal  law.  (2.)  At  the  opposite  extreme  stand  Great 
Britain,  the  United  States  and  France,  which,  on  the  principle 
that  criminal  law  is  territorial,  refrain  from  visiting  with 
penalty  crimes  of  their  subjects  committed  abroad.  Yet  they 
do  not  adhere  to  this  rule  with  absolute  rigor.  The  two 
former  try  and  punish  slave-trading  carried  on  by  their  sub 
jects  in  foreign  vessels,  and  crimes  perpetrated  in  foreign 
countries  where  exterritorial  jurisdiction  is  conceded  to  them. 
Great  Britain  punishes  high  treason,  murder,  homicide,  big 
amy,  illegal  acts  of  British  crews,  and  crimes  perpetrated  in 
certain  barbarous  countries.  France  notices  no  crimes  of 
Frenchmen  against  foreigners,  nor  "  delits  "  of  one  Frenchman 
against  another  on  foreign  soil ;  nor  "  crimes  "  of  Frenchman 
against  Frenchman  except  on  complaint  of  the  injured  party ; 
but  punishes  offences  against  the  safety  of  France,  together 

*  Foelix  II.  §  347-404,  esp.  §  357.     But  comp.  Story,  §  603-607. 


§  78  RELATIONS    OF    FOREIGNERS,    ETC.  127 

with  counterfeiting  its  seal,  coins,  and  paper  money.  (3.)  Cer 
tain  states,  as  Belgium,  Holland,  Sardinia,  Darmstadt,  punish 
foreign  crimes  of  their  subjects  against  the  state  or  their  fellow- 
subjects,  but  only  certain  crimes  of  such  subjects  in  foreign 
parts  against  foreigners.  The  two  former  call  to  account  only 
for  grave  crimes,  as  murder,  arson,  rape,  forgery ; — Belgium 
adopting  the  same  standard  which  she  applies  to  her  treaties 
relating  to  the  extradition  of  fugitive  foreigners.  Sardinia 
makes  punishable  all  "  crimes "  of  its  subjects  abroad,  but 
"  delits  "  are  subject  to  the  rule  of  reciprocity.  The  scale  of 
punishment  also  is  in  all  cases  one  degree  less  than  that  of  the 
same  offences  committed  at  home.  (4.)  Wurternberg  makes 
the  fact  of  punishment,  (in  a  milder  former  than  for  similar 
crimes  at  home,)  dependent  on  the  questions  whether  the  given 
offence  has  a  penalty  affixed  to  it  by  the  laws  of  the  foreign 
state  where  it  took  place,  and  whether  it  would  be  punishable 
there,  if  committed  against  Wurtemberg. 

The  same  difference  of  practice  exists  in  the  case  of  crimes 
committed  by  foreigners  in  a  foreign  country  against  a  state 
or  one  of  its  subjects,  who  are  afterwards  found  by  the  injured 
state  within  its  borders.  England  and  the  United  States  seem 
not  to  refuse  the  right  of  asylum,  even  in  such  cases.  France 
punishes  public  crimes  only,  arid  such  as  Frenchmen  would  be 
liable  for,  if  committed  abroad.  (See  this  §  above.)  So  Bel 
gium  and  Sardinia,  but  the  latter  state  also,  in  the  case  of 
wrongs  done  to  the  individual  Sardinian,  first  makes  an  offer  of 
delivering  up  the  offending  foreigner  to  the  forum  delicti,  and 
if  this  is  declined,  then  gives  the  case  over  to  its  own  courts. 
Many  states,  again,  act  on  the  principle  that  it  is  as  right  to 
punish  a  foreigner  as  a  subject  for  foreign  crimes  against  them 
selves  or  their  subjects. 

Nearly  all  states  consider  foreign  crimes,  against  foreign 
states  or  their  subjects,  as  beyond  their  jurisdiction.  A  few 
refuse  sojourn  on  their  soil  to  such  foreign  wrong  doers.  A 
few  go  so  far  as  to  punish  even  here,  in  case  the  party  most 
nearly  concerned  neglects  to  take  up  the  matter.  Thus  Aus- 


128  RIGHT    OF    INTERCOURSE.  §  79 

tria,  if  an  offer  of  extradition  is  declined  by  the  offending  state, 
punishes  and  relegates  the  criminal.* 

From  this  exposition  it  is  evident  (1.)  that  states  are  far  from 
universally  admitting  the  territorially  of  crime ;  (2.)  that  those 
who  go  farthest  in  carrying  out  this  principle  depart  from  it 
in  some  cases,  and  are  inconsistent  with  themselves.  To  this 
we  may  add  (3.)  that  the  principle  is  not  founded  on  reason, 
and  (4.)  that,  as  intercourse  grows  closer  in  the  world,  nations 
will  the  more  readily  aid  general  justice.  Comp.  §  20  b. 

§79. 

The  considerations  which  affect  the  question,  What  a  gov- 
eminent  ought  to  do  in  regard  to  fugitives  from 
foreign  justice,  who  have  escaped  into  its  terri 
tory  ?  are  chiefly  these :  First,  that  no  nation  is 
held  to  be  bound  to  administer  the  laws  of  another,  or  to  aid 
in  administering  them ;  secondly,  that  it  is  for  the  interest  of 
general  justice  that  criminals  should  not  avoid  punishment  by 
finding  a  refuge  on  another  soil,  not  to  say  that  the  country 
harboring  them  may  add  thereby  to  the  number  of  its  worth 
less  inhabitants ;  and,  thirdly,  that  the  definitions  of  crime  vary 
so  much  in  different  nations,  that  a  consent  to  deliver  up  all 
accused  fugitives  to  the  authorities  at-home  for  trial,  would 
often  violate  the  feeling  of  justice  or  of  humanity.  Some  have 
contended  for  an  absolute  obligation  to  deliver  up  fugitives 
from  justice ;  but  (1.)  The  number  of  treaties  of  extradition, 
shows  that  no  such  obligation  is  generally  recognized.  Else 
what  need  of  treaties  giving  consent  to  such  extradition,  and 
specifying  crimes  for  which  the  fugitive  should  be  delivered 
up  ?  (2.)  It  may  be  said  that  the  analogy  of  private  interna 
tional  law  requires  it.  If  a  nation  opens  its  courts  for  the 
claim  of  one  foreigner  on  another,  and  in  so  doing  applies 
foreign  law  to  the  case,  why  should  it  not  open  them  for  claims 
of  a  foreign  government  against  violators  of  its  laws  ?  But  the 
analogy  fails.  In  private  claims,  the  basis  of  right  is  admitted 

*  These  facts  are  drawn  from  an  essay  on  the  doctrine  of  asylum,  by  R.  Y.  Mohl, 
in  his  Staatsr.  Volkerr.  u.  Politik,  vol.  I.  644-649. 


§79  RELATIONS    OF    FOREIGNERS,    ETC.  129 

with  a  general  agreement  by  the  law  of  all  states.  In  public 
prosecution  of  criminals,  different  views  of  right  are  taken,  as 
it  respect  offences,  method  of  trial,  and  degree  of  punishment. 
There  is  a  class  cf  persons,  particularly,  —  political  offenders,  — 
whom  the  world  often  regards  as  unfortunate  rather  than 
guilty,  who  may  make  useful  inhabitants  of  another  land,  hav 
ing  sinned  not  against  the  morality  of  the  universe,  but  against 
the  absurd  laws,  it  may  be,  of  an  antiquated  political  system. 
It  is  chiefly  on  their  account  that  (3.)  nations,  the  most  humane, 
or  the  most  jealous  of  their  own  sovereignty,  have  felt  it  to  be 
base  and  wrong  to  send  back  voluntary  exiles  to  their  native 
land.* 

We  conclude  that  there  is  a  limited  obligation  of  nations  to 
assist  each  other's  criminal  justice,  which  only  special  treaties, 
expressing  the  views  of  the  parties  at  the  time,  can  define. 
Of  such  treaties  there  is  no  lack.  The  United  States  and 
Great  Britain  entered  into  one  in  1842,  providing  for  extradi 
tion  in  cases  of  murder,  assault  with  intent  to  murder,  piracy, 
arson,  robbery,  forgery,  and  utterance  of  forged  paper.  An 
other  between  the  United  States  and  France,  made  in  1843r 
relates  to  charges  for  murder,  attempts  to  murder,  rape,  forgery,, 
arson,  and  such  embezzlement  *bj  public  officers,  as  subjects  to 
infamous  punishment  in  France,  to  which  subsequently  robbery 
and  burglary  were  added.  Quite  recently,  in  1859,  an  addi 
tional  article  includes  persons  charged  as  principals,  acces 
sories,  or  accomplices,  in  forging,  or  knowingly  passing  or 
putting  into  circulation  counterfeit  coin  or  bank  notes,  or  other 
paper  currency  as  money,  with  intent  to  defraud,  and  also 
embezzlement  by  any  salaried  persons,  to  the  detriment  of 
their  employers,  which  subjects  to  infamous  punishment.  In 
both  treaties  it  is  required  that  the  evidence  of  criminality 
must  be  such  as  to  justify  apprehension  and  commitment,  ac 
cording  to  the  law  of  the  place  of  the  accused  person's  refuge. 

The  case  of  political  refugees  has  some  points  peculiar  to 

*  The  feeling  at  Athens  is  shown  in  the  very  instructive  oration  of  Demosthenes 
against  Aristocratesy  §  85,  Bekker,  Kara  rbv  Kowbv  airavTuv  avfrpATruv  vop.ov^  8s 


9 


130  RIGHT    OF    INTERCOURSE.  §80 

itself.  A  nation,  as  we  have  seen,  has  a  right  to  harbor  such 
persons,  and  will  do  so,  unless  weakness  or  political  sympathy 
lead  it  to  the  contrary  course.  But  they  may  not,  consistently 
with  the  obligations  of  friendship  between  states,  be  allowed 
to  plot  against  the  person  of  the  sovereign,  or  against  the  insti 
tutions  of  their  native  country.  Such  acts  are  crimes,  for  the 
trial  and  punishment  of  which  the  laws  of  the  land  ought  to 
provide,  but  do  not  require  that  the  accused  be  remanded  for 
trial  to  his  native  country. 

§80. 

A  peculiar  question  touching  international  law  is  presented 
by  the  rights  of  authors  and  inventors.  Have 
eopjHright,  and  these  such  an  absolute  right  of  property  that  the 
book  or  machine  cannot  be  reproduced  in  a  foreign 
land  without  their  consent, — the  book  not  even  in  a  foreign 
translation,  and  if  so,  ought  not  the  patent  to  be  perpetual 
every  where  ?  These  are  questions  which  have  been  consider 
ed  seriously  only  in  more  recent  times ;  about  which,  therefore, 
there  is  no  agreement  of  nations.  But  many  treaties  in  modern 
times  have  provided  protection  to  such  persons,  and  this  pro 
tection  for  a  limited  time  is  likely  to  become  universal,  where- 
ever  applied  for.* 

*  For  the  law  of  copy-right  comp.  0.  Wachter,  das  Yerlagsrecht,  Stuttgart,  1858, 
esp.  pp.  741-832 ;  P.  Burke,  the  law  of  international  copy-right  between  England 
and  France,  Lond.  1852.  The  leading  principles  of  the  laws  and  treaties  thus  far 
made  are  reciprocity  between  the  states  concerned,  a  limited  term  of  protection, 
and  that  the  right  of  translation  belongs  to  the  author  or  his  assigns.  In  this  coun 
try,  no  international  law  or  treaty  relating  to  copy-right  as  yet  exists.  The  foreigner, 
although  by  the  admission  of  all  jurists  having  a  property  to  his  work,  is  unpro. 
tected. 


§81  RELATIONS    OF   FOREIGNERS,   ETC.  131 

§81. 
APPENDIX 

A  CASE,  remarkable  as  involving  several  points  of  international  law,  re 
lating  to  the  condition  of  aliens  and  the  protection  due  to  Case  of  Kogzta 
them,  is  that  of  Martin  Koszta.  This  man,  \vho  had  been 
engaged  in  the  Hungarian  rebellion  of  1849,  fled  into  Turkish  territory  with 
a  number  of  others,  and,  at  length,  after  refusal  to  deliver  him  up  to  Aus 
tria,  was,  with  the  understanding  of  that  government,  sent  out  of  Turkey 
into  foreign  parts.  "  It  was  alleged  that  he  engaged  never  to  return,"  says 
Mr.  Marcy,  "  but  this  is  regarded  as  doubtful."*  The  man  chose  the  United 
States  as  his  place  of  exile,  and  in  1852  made  the  usual  declaration,  prepar 
atory  to  being  naturalized,  which  our  laws  require.  In  1854  he  returned 
to  Turkey,  on  account,  it  is  said,  of  private  affairs.  At  Smyrna,  being  pro 
vided  with  a  tezlcereh  or  passport  from  the  American  consul  there,  and  from 
the  acting  charge  at  Constantinople,  he  was  seized  on  land,  thrown  into 
the  water,  taken  up  by  the  boat's  crew  of  an  Austrian  frigate,  and  put  into 
irons.  This  was  done  at  the  instigation  of  the  Austrian  consul-general  at 
Smyrna,  and  after  refusal  of  the  Turkish  governor  to  allow  his  arrest.  In 
tercessions  for  his  release  on  the  ground  of  his  American  nationality,  were 
ineffectual.  Finally,  when  it  was  reported  that  a  design  had  been  formed 
of  removing  the  man  by  stealth  into  the  dominions  of  Austria,  the  captain 
of  a  public  vessel  of  the  United  States,  then  in  port,  prepared  to  resort  to 
force,  unless  he  was  released.  This  led  to  an  arrangement,  by  which  he 
was  put  under  the  custody  of  the  French  consul-general  until  the  govern 
ments,  which  were  at  issue,  should  agree  what  to  do  with  him.  He  after 
wards  went  back  to  the  United  States. 

The  following  are  some  of  the  points  which  arise  to  view  in  the  discus 
sion  of  this  case : 

1.  Granting  that  the  man  was  an  Austrian  subject,  could  he  be  legally 
seized  in  Turkey  ?  His  crime  had  been  a  political  one.  The  Turks  had 
refused,  with  the  approbation  of  ambassadors  of  the  most  important  Chris 
tian  powers,  to  deliver  up  the  Hungarian  fugitives,  on  the  ground  of  the 
political  nature  of  their  offence. 

It  was  said  that  the  exterritorial  consular  jurisdiction  mentioned  below 
(§  96,)  authorized  his  arrest.  The  reply  of  Mr.  Marcy  to  this  is,  that  such 
jurisdiction  was  intended  for  a  different  set  of  cases,  and  such  is  probably 
the  fact.  The  Austrian  officials,  then,  in  seizing  him,  committed  an  offence 

*  Mr.  Hulsemann's  letter  to  Mr.  Marcy,  and  his  reply  in  Senate  documents,  33d 
Congr.,  1st  Session,  vol.  I. 


132  RIGHT    OF    INTERCOURSE. 

against  the  sovereignty  of  Turkey,  and  so,  an  offence  against  the  law  of 
nations. 

2.  "Was  he  an  Austrian  subject  ?     Austrian  nationality  ceases  according 
to  what  is  said  in  §  66,  on  the  authority  of  M.  Foelix,  when  a  subject  emi 
grates  with  the  consent  of  the  government.    He  had  more  than  the  con 
sent  of  his  government  to  his  abandonment  of  his  country  ;  he  was  forced 
into  exile.     But  to  this  it  might  be  replied,  that  he  had  agreed  in  writing 
never  to  return  to  Turkey,  and  that  the  Austrian  claim  upon  him  would 
revive  on  his  failing  to  fulfil  this  condition.     It  is  indeed  questioned  by  Mr. 
Marcy,  whether  he  engaged  never  to  return  ;  and  it  might  perhaps  be  said, 
that,  if  such  an  engagement  existed,  it  related  only  to  return  for  political 
purposes.     But  to  this  Austria  might  reply,  that  she  could  not  know  what 
his  purposes  were,  and  that  the  promise  must  be  absolute,  in  order  to  pre 
vent  his  doing  political  mischief  in  the  neighborhood  of  Hungary.     This, 
however,  is  a  point  on  which  our  diplomatist  preserves  silence. 

3.  What  were  his  relations  to  the  United  States  ?     Not  those  of  a  citi 
zen,  but  of  a  domiciled  stranger.   His  oath,  declaring  his  purpose  to  become 
a  citizen,  and  his  long  stay  here,  put  this  out  of  the  question,  and  his  tem 
porary  absence  could  not  shake  this  character  off.     Moreover,  he  had  a 
passport,  certifying  to  his  American  nationality.     He  would  therefore  be 
entitled,  by  the  law  of  nations,  to  the  protection  of  the  Turkish  authorities 
against  his  Austrian  captors.     Had  he  been  even  a  fugitive  prisoner  of  war, 
he  could  not  lawfully  have  been  seized  on  shore,  unless  treaty  had  so  pro 
vided.     He  would  equally  be  entitled  to  all  that  protection  which  officials 
of  the  United  States  were  authorized  to   extend  to  him  within  Turkish 
territory. 

4.  "Would  it  have  been  in  accordance  with   international  law  for  the 
captain  of  the  frigate  to  use  force  in  protecting  him  within  the  port  of 
Smyrna  ?    Active  and  aggressive  force  certainly  not.     As  things  were,  the 
demonstration  of  force  saved  the  use  of  it.     But  to  complain  of  such  force 
would  have  fallen  to  the  duty  of  Turkey,  as  it  would  have  taken  place 
within  her  waters.      As  for  force,  absolutely  considered,  for  instance  on 
the  high  seas,  Austria  could  not  have  complained,  if  the  evils  of  a  sudden 
wrong  on  her  part  were  in  that  way  sought  to  be  prevented. 

At  the  bottom  this  was  a  case  of  collision  between  original  and  trans 
ferred  allegiance,  the  latter  in  its  incipiency,  in  which  the  obligation  to 
protect  the  person,  within  the  limits  of  the  law  of  nations,  clearly  lay  on 
the  United  States.  How  Austria  could  have  dealt  with  him  within  her 
own  limits  is  another  question. 


CHAPTER  IV. 

THE  FORMS   AND   THE  AGENTS   OF   INTERCOURSE  BETWEEN  NATIONS. 

SECTION    I. — The    Forms    of  Intercourse,   or  International 

Courtesy. 

§82. 

WE  have  hitherto  considered  the  duties  and  usages  of  na 
tions,  so  far  as  relates  to  the  treatment  of  in-  General  comity 
dividual  aliens  who  are  within  their  territory,  ^tween  nations. 
We  now  pass  on  to  the  conduct  which  is  due  from  one  body 
politic  to  another,  and  to  the  representatives  by  whom  public 
intercourse  is  managed. 

The  general  duties  here  required  are  those  which  are  in 
cluded  in  the  word  comity :  we  call  them  duties  at^  their  origin, 
as  being  more  or  less  indefinite,  and  not  of  strict  obligation ; 
but  they  become  obligatory,  if  by  compact  or  compliance  wTith 
usage  a  nation  takes  them  upon  itself  in  a  specific  shape. 
These  duties  are  such  as  polite  treatment  of  a  sovereign  or  of 
his  ministers  in  a  foreign  country,  courtesy  in  diplomatic  inter 
course,  the  observance  of  court-etiquette,  and  of  respect  on  the 
sea  towards  a  foreign  flag.  Besides  duties  such  as  these,  we 
place  under  this  head  respect  for  the  reputation  of  a  foreign 
state,  which  is,  as  we  have  seen  (§  18),  a  thing  of  strict  justice. 

The  use  of  formal  expressions  of  courtesy  among  nations 
consists  in  their  preventing  jealousies  and  quarrels.  At  the 
same  time  they  may  themselves  be  the  causes  of  disputes,  for, 
when  once  established  by  usage,  to  withhold  them  is  a  slight ; 
and  to  pay  attentions  of  different  kinds,  OK  in  different  degrees, 
to  equal  and  sovereign  states,  may  be  more  provoking  than  if 
both  states  had  been  treated  with  equal  want  of  politeness. 


134:  THE    FORMS    AJSTD    THE  §  83 

But  on  the  whole,  as  in  the  society  of  individuals  who  are 
equals,  so  among  states  it  is  probable  that  without  them  there 
would  be  a  far  greater  amount  of  unfriendliness. 

§83. 

Every  nation,  as  we  have  seen,  has  a  right  of  reputation ; 

every  other,  therefore,  is  bound  to  abstain  from 

refutation °of  lif-  deeds  and  words,  which  are  calculated  to  wound 

other  state.  .  „    ,  .     .  . ,  -, 

its  sense  of  character,  or  to  injure  its  good  name, 
or  that  of  its  sovereign,  before  the  world.  No  nation,  then, 
through  its  public  documents,  or  by  its  official  persons,  can 
with  right  reflect  on  the  institutions  or  social  characteristics  of 
another,  or  make  invidious  comparisons  to  its  disadvantage,  or 
set  forth  in  any  way  an  opinion  of  its  inferiority.  So  with 
regard  to  its  functionaries,  an  intended  insult  to  whom  is  an 
insult  to  the  state  which  they  represent.  But  a  state  is  not 
bound  to  repress  the  free  remarks  made  by  the  press  and 
private  persons  upon  foreign  states  and  sovereigns,  although 
comity,  if  not  justice,  requires  that  foreign  sovereigns  should 
have  the  power  to  prosecute  for  libel  or  scandal  before  its 
courts.  Nor  again  ought  regard  for  the  feelings  of  another 
government  to  preclude  a  state  from  remonstrating,  even  in 
strong  terms,  against  conduct  which  it  judges  to  be  oppressive 
or  flagitious,  although  that  conduct  may  be  confined  in  its 
effects  to  the  subjects  of  the  wrong-doing  state.  (Comp.  §  111.) 
It  may  be  made  a  question,  how  far  documents,  which  are 
The  Huisemann  no*  strictly  public,  may  be  complained  of  by 

foreign  states,  as  embodying  insults  against  them 
selves.  A  noted  case  of  such  complaints  occurred  in  1850, 
after  our  government  had  sent  a  secret  agent  to  ascertain 
whether  Hungary,  in  its  war  with  Austria,  was  likely  to 
achieve  its  independence.  So  much  the  government  had  a 
right  to  do,  as  it  interfered  in  no  manner  in  the  struggle.  But 
when  the  instructions  to  this  agent  were  published,  containing 
the  expression  "  iron  rule,"  applied  to  the  sway  of  Austria  over 
Hungary,  the  Austrian  government  directed  its  Charge  d'af 
faires  at  Washington,  Mr.  Huisemann,  to  communicate  its  dis- 


§84  AGENTS    OF    INTERCOURSE,    ETC.  135 

pleasure  at  this  offensive  expression,  and  at  the  apparent  sym 
pathy  with  a  part  of  the  empire  in  revolt.  It  was  replied  by 
the  United  States,  that  there  had  been  no  interference  in  the 
quarrel  between  Austria  and  Hungary  ;  that  a  sympathy  with 
a  people  struggling  for  its  independence  was,  on  our  part,  un 
avoidable  ;  and  "  that  a  communication  from  the  President  to 
either  House  of  Congress,  is  regarded  as  a  domestic  communi 
cation,  of  which  ordinarily  no  foreign  state  has  cognizance." 
This  is  true,  because  ordinarily  the  departments  of  a  govern 
ment  do  not  discuss  the  affairs  of  foreign  countries,  with  which 
one  or  other  of  them  has  nothing  immediately  to  do.  But  it  is 
evident  that  communications  may  be  made  between  the  depart 
ments  of  a  government,  for  which  a  foreign  state  may  demand 
redress.  The  degree  of  publicity,  now  given  to  political  docu 
ments,  is  such,  that  they  are  brought  before  the  eyes  of  the 
world,  and  cannot  be  regarded  as  private.  If  a  man  allows  his 
private  letters,  reflecting  on  individuals,  to  be  published,  he 
may  commit  a  wrong  ;  and  so  may  a  nation  or  a  government, 
if  it  make  or  allow  to  fie  made  public  what  may  fairly  be  called 
insults  to  forein  states. 


It  may  be  inexpedient  to  admit  foreign  sovereigns  into  a 
country,  but  comity  requires  that  this  be  ordinari-  Treatment  of  for- 
ly  allowed,  and  that,  besides  the  exterritoriality  etfn 
which  they  enjoy  (§  64),  such  marks  of  respect  should  be  paid 
to  them,  and  to  the  members  of  sovereign  houses,  as  may  be 
required  by  the  usages  of  Christian  states.  So  also  in  their 
transit  through,  or  passage  along  the  coasts  of  another  country, 
they  are  to  be  saluted  in  a  manner  becoming  the  dignity  of 
their  stations,  as  the  highest  representatives  of  an  independent 
state. 

A  more  free  and  indefinite  treatment  of  sovereign  houses 
by  one  another,  consists  in  friendly  announcements  of  interest 
ing  events,  as  births,  deaths,  betrothals,  and  marriages  ;  and 
in  corresponding  expressions  of  congratulation  or  condolence, 
amounting  in  the  latter  case  even  to  the  putting  on  of  mourn- 


136  THE    FORMS    AND    THE  §  8? 

ing.     These  courtesies  of  intercourse  are  called  by  some  text- 
writers  state-gallantry. 

Every  court  has  its  own  ceremonial  and  rules  of  precedence 
Ceremonial  of  at  state  festivals  and  the  like.  While  observing 
these,  which  are  nearly  alike  wherever  there  is  a 
monarch  and  a  court,  a  state  is  bound  to  make  no  distinctions 
in  external  politeness  between  foreign  representatives,  so  far  as 
such  traditional  rules  do  not  make  it  necessary ;  and  foreign 
representatives  are  bound  to  conform  to  the  ceremonial  lex  loci, 
if  consistent  with  the  honor  of  their  country. 

It  is  evident  that  correspondence,  between  the  legate  of  one 
Diplomatic  cor-  state  and  the  minister  or  sovereign  of  another,  re 
states,  quires  both  those  forms  of  address  which  are  usual 
among  diplomatists,  and  an  abstinence  from  all  expressions  of 
anger  and  of  contempt.  Otherwise,  an  offence  against  the 
self-respect  of  the  nation,  with  whose  functionaries  he  holds 
intercourse,  is  committed,  and  he  may  need  to  atone  for  his 
fault  by  apology  or  by  recall,  or  else  furnish  ground  of  com 
plaint  against  his  nation. 

§  85. 

In  regard  to  the  forms  of  international  politeness  on  the 
ceremonial  of  the  sea>  a  distinction  is  to  be  made  between  what  is 
done  within  the  waters  of  a  nation,  and  what  is 
done  on  the  high  seas,  where  nations  are  entirely  equal.  On 
the  high  seas,  and,  indeed,  in  the  waters  of  third  powers,  ships 
of  war  are  under  no  imperative  obligation  from  usage  or  law 
to  salute  one  another,  and  yet  such  marks  of  respect  are  not 
unusual,  and  are  in  some  degree  expected,  so  that  the  absence 
of  them,  although  no  insult,  might  be  regarded  as  discourteous. 
They  ought  generally  to  be  returned  if  offered  by  one  of  the 
parties.*  But  within  its  own  sea  line  a  sovereign  state  may 

*  Bynkersh.  Quaest.  J.  P.,  2,  §  24.  "  Quod  ad  mare  exterum,  quod  in  nullius 
Principis  dominio  est,  nullius  quoque  est  aliis  reverentiam  imperare,  et  salutem  na- 
vibus  suis  prgestandam  exigere.  Sunt  quaedam,  quag,  tametsi  honeste  prsestentur, 
inhoneste  tamen  petuntur.  Inter  ea  refero,  si  quis  minor  dignitate  majorem,  in  pub- 
lico  sibi  obviam  factum,  salutet  vel  non  salutet,  et  siquae  minorum  Principum  navis, 
in  mari  extero,  navibus  majorum  Principum,  quaqua  etiam  dignitate  sint,  salutem 
dicat  vel  neget. 


§85  AGENTS    OF    INTERCOURSE,    ETC.  137 

prescribe  the  ceremonies  with  which  its  forts  and  ships  of  war 
are  to  be  approached  or  passed,  but  it  must  require  nothing 
which  can  be  degrading  to  other  states.  And  in  cases,  where 
the  claim  of  a  nation  over  certain  waters  is  not  acknowledged, 
to  refuse  compliance  with  a  prescribed  ceremony  is  a  mode  of 
showing  national  independence,  at  which  no  offence  can  be 
justly  taken.  , 

Yarious  forms  of  international  polAeness  on  the  sea,  are, 
or  have  been  in  vogue,  such  as  furling,  inclining  Porras  of  polite. 
or  lowering  the  flag,  lowering  the  topsails,  firing  nees  on  the  Bea- 
salutes  with  cannon,  sometimes  accompanied  with  salvos  of 
musketry,  lowering  and  raising  the  flag  several  times  in  suc 
cession,  salutations  with  the  voice,  and  finally,  complimentary 
visits  to  each  other's  vessel.  To  take  down  the  flag,  or  to 
lower  the  topsails,  is  a  token  of  inferiority,  which  is  now  nearly 
or  quite  obsolete.  "  To  lower  or  furl  the  flag,"  says  Ortolan,* 
u  is  not  now  practised  between  vessels  of  war,  as  a  token  of 
respect,  and  is  a  sign,  rather,  of  mourning  or  of  danger.  But 
merchant  vessels  often  greet  vessels  of  war  by  lowering 
and  raising  the  flag  three  several  times." 

The  etiquette  of  the  sea  requires  that  a  ship  of  war  enter 
ing  a  harbor,  or  passing  by  a  fort  or  castle,  should  pay  the  first 
salute,  except  when  the  sovereign  or  his  ambassador  is  on 
board,  in  which  case  the  greeting  ought  to  be  made  first  on  the 
shore.  So  also  the  earliest  salutation  should  proceed  from  a 
ship  meeting  or  joining  a  fleet,  and  from  an  auxiliary  squadron 
on  its  approach  to  the  main  armament.  When  single  vessels 
encounter  one  another,  an  admiral's  ship  is  to  receive  the  first 
compliment,  and  so  downward,  according  to  rank,  the  inferior 
vessel  always  commencing  salutations.  Privateers  greet  ships 
of  war  without  having  a  right  to  expect  the  return  of  the  com 
pliment.  Merchant  ships  salute  foreign  ships  of  war  by  de 
monstrations  with  sail  and  flag,  or  with  cannon,  if  they  have 
any,  but  the  ship  need  not  slacken  its  course  for  such  purposes. 
A  superior  vessel,  as  one  commanded  by  an  admiral,  may 
respond  to  a  compliment  with  a  smaller  number  of  shot,  but  in 

*  Diplom.  de  la  mer,  Vol.  I.  Book  2,  Chap.  15. 


138  THE  FORMS  AND  TEE  §86 

general  the  marks  of  respect  between  public  vessels  must  be 
equal.* 

The  rules  of  sea  politeness  are  often  embodied  in  instruc 
tions  given  to  commanders  of  vessels  by  their  respective  gov 
ernments,  which  directions,  through  the  Christian  states  of  the 
world,  have  a  general  uniformity.  They  are  also  sometimes  a 
subject  of  special  treaty.  "  They  are  of  use,"  as  Ortolan,  him 
self  a  naval  officer,  remarks,f  "  as  honors  paid  to  the  independ 
ence  of  nations,  as  a  public  authorized  recognition  that  the 
sovereignties  of  the  world  are  entitled  to  mutual  respect.  They 
help  the  crews  of  public  vessels,  from  the  commanders  down  to 
thfe  marines,  to  feel  that  the  national  honor  is  in  their  hands, 
and  thus  raise  the  sense  of  character  of  those  who  are  repre 
sentatives  of  nations  upon  the  seas." 

§86. 

Formerly,  above  all  in  century  XYIL,  the  tokens  of  respect 
which  certain  nations  demanded  of  others,  in  seas 

Disputes  in  Cent.  1-1,1  ,     i      i         •     • 

xvii.  concerning  over  which  they  asserted,  dominion,  gave  rise  to 


ceremonies  at  sex 


bitter  feelings  and  to  hostilities,  or  rather  served 
as  a  pretext  for  wars  which  were  waged  on  other  grounds.  Es 
pecially  was  the  English  claim  to  sovereignty  in  the  narrow 
seas  around  Great  Britain,  a  fruitful  source  of  animosities  from 
the  beginning  of  the  reign  of  James  I.  onward.  The  demand 
was,  that  all  foreign  vessels  should  first  salute  English  vessels 
of  war  by  lowering  flags  and  topsails,  without  any  correspond 
ing  mark  of  respect  being  made  obligatory  on  the  other  side.J 
This  France  and  Spain  forbade  their  vessels  to  comply  with ;  and 
in  1634,  by  an  arrangement  between  France  and  England,  the 

*  Comp.  Ileffter,  §  1 97.         f  Diplom.  de  la  mer,  u.  s. 

^  In  a  communication  to  the  court  of  France  in  1667,  the  Dutch  say  that  they 
are  willing 'that  France  should  salute  them  with  two  cannon  shot  less,  but  cannot 
consent  to  lower  their  flag,  unless  France  shall  do  the  same  in  return.  They  add, 
that  although  the  English  in  an  article  of  the  treaty  prescribing  tokens  of  respect 
are  not  expressly  bound  to  return  the  salutation  with  the  flag  which  the  Dutch  offer 
to  them,  it  is  with  justice  presumed  to  be  incumbent  on  them,  and  that  if  the  English 
have  failed  in  such  reciprocity,  they  have  failed  in  their  duty,  for  which  reason  the 
Dutch  afterwards  refused  to  lower  their  flag,  as  by  treaty  required.  See  Ortolan,  I. 
369. 


§  86  AGENTS    OF    INTERCOURSE,    ETC.  139 

ships  of  each  state,  when  nearer  to  the  other's  territory,  should 
give  the  first  salute.  But  from  Holland,  England  was  led,  by 
commercial  jealousy  and  a  feeling  of  superior  strength,  to  re 
quire  those  humiliating  marks  of  respect  with  great  pertinacity. 
The  war  between  the  two  nations,  which  broke  out  in  1652, 
was  preceded  by  an  engagement  between  Blake  and  Yan 
Tromp,  growing  out  of  the  demand  that  the  flag  of  Holland 
should  be  lowered;  and  in  the  treaties  of  1654, 1662,  and  1667, 
the  Dutch  agreed  to  pay  this  compliment  within  certain  seas 
in  future.  In  1671  the  captain  of  a  king's  yacht  sailed  out  of 
the  Meuse  through  a  Dutch  fleet,  having  received  orders  to 
test  their  compliance  with  this  rule :  the  vice-admiral  in  com 
mand  declared  his  willingness  to  lower  his  own  flag  to  the 
royal  flag  of  England,  but  refused  to  allow  the  whole  fleet  to 
join  in  the  act.  For  this  the  yacht  fired  upon  him,  but  its 
captain  was  put  into  the  Tower  on  reaching  England,  for  not 
continuing  his  fire  although  the  Dutch  had  not  retaliated.  The 
English  ambassador  at  the  Hague  claimed  that  reparation  wras 
due  for  this  refusal  of  the  vice-admiral,  inasmuch  as  not  only 
single  vessels,  but  also  whole  fleets,  were  obliged  to  strike  the 
flag  to  an  English  vessel  of  war.  The  refusal  of  the  States- 
general  to  redress  this  grievance  was  a  leading  pretext  of  the 
already  meditated  war  of  1672.*  At  the  peace  of  1674,  it  was 
stipulated  that  fleets  as  well  as  single  vessels,  belonging  to  the 
Dutch  republic,  should  furl  the  flag,  and  lower  the  topsail  be 
fore  any  English  vessel  of  war,  between  Cape  Staten  in  Nor 
way  and  Cape  Finisterre  in  Northern  Spain.  Even  in  1784,  f 

*  Bynkershoek's  critique  on  this  transaction  (u.  s)  is  worthy  of  notice.  While 
he  inclines  to  admit  that  the  treaty  of  1654,  rightly  interpreted,  sustained  the  Eng 
lish  claim  that  a  whole  fleet  of  the  Dutch  should  salute  a  single  English  ship  in  the 
English  seas,  by  lowering  flag  and  topsails,  he  claims,  (1.)  that  the  affair  occurred 
near  the  shore  of  Zeeland,  and  therefore  outside  of  the  English  dominions ;  (2.)  that 
a  yacht,  though  with  guns  on  board,  is  a  vessel  of  pleasure,  not  of  war ;  and  (3.)  that 
the  Dutch  vessels  constituted  a  fleet,  and  that  fleets  can  be  compared  to  forts, 
garrisoned  places  and  harbors,  which  by  common  usage  are  to  be  saluted  first. 
Moreover  a  fleet  at  anchor  occupies  a  part  of  the  sea,  which  thus  passes  under  the 
sway  and  dominion  of  the  occupant,  to  whom,  therefore,  being  now  in  his  own 
territory,  the  first  tokens  of  respect  are  to  be  rendered.  This  last  plea  is  evidently 
worthless.  f  Ortolan,  I.  372. 


140  THE    FORMS    AND    THE  §87 

these  absurd  tokens  of  inferiority  were  again  confirmed  in  a 
treaty. 

The  French,  in  the  same  century,  set  up  similar  pretensions 
against  Holland,  although  without  the  pretext  of  dominion 
over  the  narrow  seas.  But  their  claims  were  not  so  galling, 
or  so  persevering,  as  those  of  England.  In  an  ordonnance  of 
1689,  Louis  XI Y.  went  so  far  as  to  require  that  when  French 
vessels  of  war  met  those  of  other  nations  equal  in  rank,  they 
should  demand  the  first  salute,  and  use  force,  if  it  were  with 
held.  This  is  mentioned  as  a  grievance  by  William  III.  in  the 
declaration  of  war,  which  he  made  at  the  beginning  of  his 
reign. 

In  the  18th  century  a  number  of  treaties  established  equality 
and  reciprocity  in  the  ceremonial  of  the  sea,  and  the  practice 
of  nations  has  nearly  reached  this  point  in  all  respects. 


SECTION  II. — The  Agents  in  the  Intercourse  of  Nations,  or 
Ambassadors  and  Consuls. 

§87. 

Nations  holding  intercourse  with  one  another  need  to  have 
Persons  appointed  some  understanding  as  to  the  conditions  of  the 
tercoure?  between  *  intercourse,  and  certain  functionaries  by  whom 
the  intercourse  between  the  sovereignties  may  be 
carried  on,  and  that  between  the  citizens  or  subjects  may  be 
reduced  to  rule.  Such  persons  we  may  call  generically  ambas 
sadors;  but  they  may  have  various  other  denominations,  as 
legates,  envoys,  charges  d'affaires,  foreign  ministers,  and  nun 
cios,  which  term,  together  with  others,  is  appropriated  to  the 
Pope's  messengers  to  foreign  courts.  The  word  ambassador 
may  denote  also  a  particular  class  or  rank  of  agents  of  national 
intercourse.  We  may  divide  ambassadors,  again,  into  ordinary 
and  extraordinary,  or  resident  and  temporary,  into  open  and 
secret,  those  with  limited  powers  and  plenipotentiaries3 — al 
though  this  title  is  often  used  in  a  vague  sense  below  its  proper 


§88  AGENTS    OF    INTERCOURSE,    ETC. 

meaning, — those  who  are  sent  to  do  business,  and  those  who  rep 
resent  the  state  at  some  ceremony  of  a  foreign  court,  and  the  like. 

Again  the  sovereign,  or  head  of  a  department,  or  even  a 
military  officer,  may  discharge  the  functions  of  an  ambassador, 
or  be  joined  with  one  in  negotiations,  without  holding  the  office 
or  having  the  title.  An  ambassador  differs  from  a  commissary 
or  commissioner  to  whom  some  business  not  of  a  diplomatic 
nature  is  entrusted ;  from  a  deputy  who  is  sent  by  subjects,  as 
by  a  province,  to  a  sovereign ;  and  from  a  consul  who  under  a 
treaty,  or  by  the  practice  of  two  nations,  protects  the  private 
affairs  of  individuals  of  the  one  within  the  territory  of  the 
other,  and  watches  over  the  commercial  interests  of  the  nation 
which  he  represents. 

The  word  ambassador  comes  through  the  mediaeval  Latin 
ambactia  or  arribaxia,  meaning  service  or  charge,  either 
from  the  Celtic  arribactus,  client >,  or  retainer ',  used  once  in 
Caesar's  Gallic  war  (YI.  15),  or  from  the  Gothic  andbahts,  with 
nearly  the  same  sense.*  Both  words  may  be,  indeed,  of  the 
same  origin.  The  signification  will,  then,  correspond  with  that 
of  minister.  The  Greek  equivalent  denotes  an  elder  of  the 
people.  The  Latins  used  the  words  orator,  and  more  common 
ly  legatus,  person .  acting  by  delegated  authority,  whence  this 
branch  of  international  law  is  called  jus  legatorum,  and  jus  le- 
gationum,  the  rights  of  legation. 


Ambassadors  always  and  everywhere  have  had  special  im 
munities,  and  often  something  of  a  sacred  charac-  origin  of  the  priv- 
ter.  This  sacredness,  which  they  have  shared  Isadora.0 
with  heralds,  and  bearers  of  flags  of  truce,  cannot  be  accounted 
for  from  their  being  originally  ministers  of  religion,  selected 
before  others  for  their  gravity  or  dignity ;  but  the  protection 
of  religion  must  have  been  given  to  them  because  their  func 
tions  and  duties  were  of  pre-eminent  importance.  They  were 
the  agents  in  all  the  intercourse  of  two  tribes  or  nations,  and 
above  all  in  making  peace  and  preventing  war.  If  not  pro- 

*  Comp.  Dietz,  Etymol.  voce  ambascia,  and  Grimm,  Worterb.  voce  ami. 


14:2  THE    FORMS    AND    THE  §89 

tected,  they  would  not  expose  themselves  to  the  danger  of  go 
ing  among  enemies  or  strangers.  They  carried  with  them  the 
dignity  of  representing  their  nation.  Thus  the  importance  of 
their  work,  the  necessity  that  they  should  be  assured  of  safety, 
and  the  dignity  of  their  office  caused  those  religious  sanctions 
to  J)e  thrown  around  them,  by  which  the  more  important  re 
lations  and  rights  were  defended  in  ancient  times. 

§89. 

Ambassadors  in  ancient  times  were  sent  on  special  occasions 
Temporary    and  by  one  nation  to  another.      Their  residence  at 

resident  ambasaa-       "      .  . 

dor8.  foreign   courts  is  a  practice  of  modern  growth. 

Some  have  thought  that  it  was  suggested  by  the  Pope's  legates, 
sent  to  reside,  or  appointed  from  among  ecclesiastics  residing, 
in  different  parts  of  Christendom.  By  others,  according  to 
Mr.  Ward  (II.  290),  it  has  been  attributed  "  to  Ferdinand  the 
Catholic,  whose  policy  led  him  to  entertain  [ambassadors]  at 
various  courts,  as  a  kind  of  honorable  spies ; "  but  Flassan  * 
makes  Louis  XI.  of  France,  Ferdinand's  earlier  contemporary, 
the  introducer  of  the  new  usage.  "  Before  him  ambassadors 
had  only  temporary  and  limited  missions,  but  this  prince 
judged  it  best  to  multiply  them,  and  to  prolong  their  stay 
abroad,  especially  at  the  courts  of  Burgundy  and  England. 
As  these  courts  penetrated  into  his  design,  they  in  turn  de 
spatched  to  him  permanent  ambassadors,  who  converted  diplo 
macy  into  intrigues  and  trickeries.  Louis  XI.  on  sending  the 
Sieurs  du  Bouchage  and  de  Solliers  to  the  Dukes  of  Guienne 
and  of  Brittany,  gave  them  for  their  instructions,  '  If  they  lie 
to  you,  lie  still  more  to  them.'  "  But  the  residence  of  ambas 
sadors  at  foreign  courts  did  not  become  the  common  practice 
until  after  the  reformation.  Henry  VII.  of  England  "  would 
not  in  his  time,  suffer  Lieger  ambassadours  of  any  foreign  king 
or  prince  within  his  realm,  or  he  with  them,  but  upon  occasion 
used  ambassadours."  *  In  the  middle  of  century  XVII.  it  was 

*  Diplom.  Fran9aise,  I.  247. 

f  Coke's  4th  Inst.  155,  cited  by  Ward,  u.  s.,  who  says  that  Linger  is  derived 
from  the  Dutch.  But  the  true  explanation  is  to  be  found  in  the  word  Legcr  of 
German  origin,  used  in  the  trading  marts  to  denote  an  agent  of  foreign  merchants 


§90  AGENTS    OF    INTERCOURSE,    ETC.  143 

said  in  Poland  of  a  French  envoy,  that  as  he  did  not  return 
home  according  to  the  custom  of  ambassadors,  he  ought  to  be 
considered  as  a  spy.  And  a  century  afterwards  Bynkershoek 
(de  for.  leg.  §  1)  defines  ordinary  legates  as  those  who  "  non 
unius  sed  omnium  rerum,  atque  adeo  et  explorandi  ergo  in 
amicorum  aulis  habentur."  Grotius  affirms  (Cent.  XVII.  in 
the  middle)  that  legationes  assiduce  may,  without  infringement 
of  rights,  be  rejected  by  nations,  being  unknown  to  ancient 
practice  (II.  18.  3).  But  the  usage  is  now  fixed  among  all 
nations  of  European  origin :  and  ambassadors  by  remaining  in 
foreign  countries  serve  the  interests  of  their  own  state  in  various 
ways,  far  more  than  persons  could  who  should  be  sent  abroad 
on  special  occasions.  In  fact,  to  attempt  to  break  away  from 
the  usage  might  be  regarded  as  indicating  a  want  of  comity,  if 
not  of  friendship.  But  although  the  sending  of  ambassadors 
and  even  of  resident  ambassadors  seems  almost  essential  to  a 
participation  in  the  international  law  of  Christendom,  there 
are  some  few  of  this  circle  of  nations  who  hold  no  such  com 
munication  with  each  other.  England  and  some  other  Protes 
tant  states  entertain  no  ministers  at  the  Pope's  court,  nor  does 
he  at  theirs.  On  the  other  hand,  the  principal  Christian  states 
keep  up  diplomatic  relations  with  some  states  out  of  their  pale 
of  civilization  and  religion,  as  with  Turkey,  Persia  and  China, 
sending  temporary  ambassadors  to  the  latter,  and  ordinary  ones 
to  the  two  former. 

§90. 

The   question  whether  a  nation  is  bound  to  receive  the 
ambassador  of  another,  depends  on  the  question 
of  the  right  of  intercourse  which  has  been  already  gltU^to"  receive 
considered.     ]STor  is  it  impossible  that  intercourse 
commercial,  if  not  political,  should  subsist  without  such  an 
agent.     But  if  a  nation  has  already  entered  into  diplomatic 
ties  with  another,  to  dissolve  them  is  a  breach  of  friendship, 
and  is  often  the  step  immediately  preceding  war.     By  treaty 

resident  in  a  town  where  they  had  a  depot  of  their  goods,  and  transferred  to  the 
agent  of  a  prince.  See  Hullmann,  Stadtewesen  des  Mittelalt.  I.  202. 


14A  THE    FORMS    AND    THE  §91 

or  usage,  a  right  had  sprung  up,  which,  together  with  the  duty 
of  comity,  the  dismissal  of  an  ambassador  invaded. 

But  these  are  exceptions  to  the  rule  that  nations  cannot 
suspend  their  diplomatic  intercourse,  already  established,  with 
out  offence.  (1.)  A  nation  may  refuse  to  receive  any  ambas 
sador  when  the  sovereignty  of  the  party  sending  him  is  doubt 
ful.  This  may  happen  when  a  state  is  convulsed  by  civil  war, 
both  factions  in  which  claim  to  exercise  sovereignty,  and  when 
a  new  government  after  a  revolution  is  not  yet  fully  establish 
ed.  (2.)  A  nation  or  sovereign  may  refuse  to  receive  &  parti 
cular  individual  as  the  representative  of  a  foreign  power  with 
out  giving  cause  of  offence.  Thus,  it  is  held  that  a  sovereign 
is  not  bound  to  receive  his  own  subject  in  this  capacity,  on  the 
ground  that  the  privileges  of  his  office  would  place  him  beyond 
the  reach  of  the  native  jurisdiction.  So  a  person  who  has 
rendered  himself  obnoxious,  or  is  of  a  notoriously  bad  character, 
may  be  rejected.  Richelieu  told  the  English  ambassador  at 
Paris,  that  the  Duke  of  Buckingham  would  not  be  accepted  as 
ambassador  extraordinary  ;  and  at  an  earlier  date,  Francis  I. 
of  France  refused  Cardinal  Pole  as  the  Pope's  legate,  on  the 
ground  of  his  being  a  personal  enemy  of  the  king's  ally,  Henry 
YIII.  of  England.  (3.)  A  state  or  sovereign  may  refuse  to 
receive  a  minister  sent  on  an  errand  inconsistent  with  its  dig 
nity  or  interests.  The  United  Provinces,  during  their  struggle 
for  independence,  declined  treating  with  envoys  from  friendly 
German  powers,  bearing  proposals  of  peace  incompatible  with 
their  honor;  and  Elizabeth  of  England  rejected  the  nuncio  of 
Pius  IV.,  sent  to  invite  her  to  appoint  deputies  for  the  Council 
of  Trent,  because  his  mission  might  have  the  ulterior  object  of 
stirring  up  disaffection  among  the  English. 

§91. 

The  right  of  sending  ambassadors  is  an  attribute  of  sover- 
of  sending  oignty,  but  the  power  of  appointing  them  may  be 


ambassadors.  vested  in  some  representative  of  the  sovereign. 
Thus,  in  this  country,  it  is  exercised  by  the  President  and 
senate,  or  during  the  recess  of  the  senate,  by  the  President 


§91  AGENTS    OF    INTERCOURSE,    ETC.  145 

• 

alone,  subject  to  their  confirmation  or  rejection ;  and  it  has 
sometimes  been  intrusted  to  the  commander  of  an  army.  Can 
a  deposed  sovereign,  a  monarch  without  a  kingdom,  perform 
this  function  ?  In  the  case  mentioned  by  Mr.  Ward  (II.  292- 
295)  of  Leslie,  Bishop  of  Ross,  calling  himself  ambassador  of 
Mary,  Queen  of  Scots,  who  was  then  after  dethronement  a 
prisoner  in  England,  the  lawyers  consulted  by  the  government 
decided,  that  "  the  solicitor  of  a  prince  lawfully  deposed,  and 
another  being  invested  in  his  place,  cannot  have  the  privilege 
of  an  ambassador,  for  that  none  but  princes  and  such  other  as 
have  sovereignty  may  have  ambassadors."  The  word  lawfully 
seems  to  make  the  opinion  futile,  for  who  is  to  decide.  The 
word  actually  would  have  better  agreed  with  that  safe  usage, 
which  is  a  part  of  international  law,  of  acknowledging  the 
sovereign  de facto,  and  to  which  the  United  States  have  ever 
adhered.  When  James  II.  lived  in  exile,  his  ambassadors  were 
received  as  those  of  the  sovereign  dejure  by  a  part  of  the  Eu 
ropean  states.  The  more  common  practice  we  apprehend  to 
be  for  sovereigns  who  sympathize  with  a  deposed  prince  to  hold 
communications  with  him  by  persons  not  openly  sustaining  the 
character  of  envoys.  The  whole  matter  may  be  disposed  of  in 
a  word :  nations  and  sovereigns,  according  to  their  biases,  will 
be  quick  or  slow  to  recognize  a  revolutionary  government ; 
some  will  cling  to  the  old  as  long  as  they  can,  others  will  fall 
into  the  current  of  things  sooner  or  later,  but  fall  into  it  at 
length  they  will.  And  if  an  actual  sovereign  feels  himself 
injured  by  the  acknowledgment  of  the  claims  of  a  deposed  one, 
such  conduct  will  be  attributed  to  hostile  feeling,  and  may 
provoke  war.  The  acknowledgment  of  the  sovereignty  of  a 
new  state  is  sometimes  first  made  by  receiving  its  ambassadors. 
A  protected  or  dependent  state  may  employ  political  and 
other  agents,  but  generally  cannot  send  ambassadors  either  to 
the  principal  state  or  to  third  powers  without  the  consent  of 
the  former.*  The  peace  of  Kainardsche,  in  1774,  allowed  the 

*  Bynkershoek  disposes  of  this  subject  as  follows :  Qwest.  J.  P.  II.,  §  3.     "I 
should  not  be  willing  to  say,  as  some  do,  that  no  one  rightfully  sends  legates  saving 
the  sovereign,  for  thus  we  should  have  to  do  away  with  legates  of  provinces  and 
10 


M6  THE    FORMS    AND    THE  §91 

Hospodars  of  Moldavia  and  Wallachia  to  send  each  a  charge 
d'affaires  of  the  Greek  religion,  and  with  the  privileges  con 
ceded  by  the  law  of  nations,  to  Constantinople.  The  members 
of  a  confederation  may,  or  may  not,  exercise  this  right,  accord 
ing  to  the  nature  of  the  compact :  no  state  of  our  confederation 
"  shall,  without  consent  of  congress,  enter  into  any  agreement 
or  compact  with  a  foreign  power,"  or  "  enter  into  any  treaty, 
alliance,  or  confederation  ; "  and  the  power  of  appointing  am 
bassadors  being  vested  elsewhere,  they  are,  perhaps,  by  that 
provision  of  the  constitution  also,  cut  off  from  the  exercise  of 
a  similar  function.  But  the  members  of  the  German  confed 
eration  can  severally  entertain  their  representatives  at  foreign 
courts. 

A  messenger  sent  from  a  province,  or  revolted  portion  of  a 
country  to  the  sovereign,  not  being  an  ambassador,  has  no 
rights  of  one.  Bad,  then,  as  the  act  was,  when  Philip  II.  of 
Spain  detained  two  noblemen  sent  from  the  Low  Countries  in 
1566,  and  finally  had  them  put  to  death,  it  was  no  offence 
against  the  rights  of  legation.  (Bynkersh.  Qusest.  J.  P.  II. , 
§3.) 

An  ambassador  being  the  representative  of  a  sovereign,  it 
follows  that  the  power  of  choice  lies  with  him,  and  thus,  as  it 
respects  the  country,  religion,  rank,  etc.,  of  the  ambassador,  no 
complaint  can  be  made  by  the  foreign  state,  except  so  far  as  a 
slight  or  intention  to  insult  may  be  inferred  from  the  circum 
stances  of  the  case.*  Formerly  it  was  not  anunfrequent  thing 

towns,  of  whom  there  has  been,  and  still  is,  a  great  abundance.  I  should  rather 
say,  that  every  one  can  send  legates  in  the  discharge  of  that  business  which  he  has 
the  power  of  doing,  but  that  according  to  the  dignity  of  the  sender  they  have  differ 
ent  rights,  and  are  held  in  different  degrees  of  honor.  If  a  prince  in  his  own  right 
sends  them,  they  have  the  full  rights  of  legates ;  if  another,  the  whole  thing  depends 
on  the  will  of  him  to  whom  they  are  sent,"  etc.  But  thus  the  question  becomes  one 
of  words.  Have  these  legates  the  privileges  of  ambassadors,  and  is  a  prince  or  state 
in  any  way  bound  to  receive  them  ?  If  not,  can  they  be  ranked  in  the  same  class  ? 

*  Even  women  have  been  acknowledged  as  representatives  at  foreign  courts,  but 
more  frequently  have  been  secret  emissaries.  The  wife  of  Marshal  Guebriant  acted 
in  this  capacity  for  France,  at  the  court  of  Ladislas  IV.,  King  of  Poland,  in  1646. 
The  noted  Chevalier  d'Eon,  who,  after  inferior  diplomatic  employments,  was  appoint 
ed  French  ambassador  at  London,  was  thought  to  be  a  woman,  but  was  not.  Comp. 
Kliiber,  §  186,  note. 


$  92  a  AGENTS    OF    INTERCOURSE,    ETC 

for  a  native  of  one  country  to  serve  as  the  ambassador  from 
another  in  the  land  where  he  owed  allegiance.  But,  as  we 
have  already  said,  some  nations, — as  France,  under  the  old  re 
gime  and  the  first  empire,  and  the  United  Provinces  from 
1727, — refused  to  receive  native-born  persons  in  this  capacity. 
When,  however,  nationality  has  been  transferred  in  accordance 
with  the  laws  of  the  states  concerned,  there  can  be  no  objection 
against  such  ministers,  unless  it  be  of  a  personal  nature.  In 
some  Catholic  countries,  again,  in  Austria,  Spain,  and  France, 
the  usage  has  prevailed  that  the  sovereign  of  the  land  shall 
nominate  the  nuncio  whom  he  receives  from  the  Pope ;  the 
reason  for  which  usage  lies  probably  in  the  fear  of  papal  inter 
ference,  and  of  unacceptableness  with  the  native  clergy. 

Sometimes  smaller  sovereigns  have  concurred  in  appointing 
the  same  person  as  their  ambassador,  and  sometimes  the  same 
person  has  held  this  office  for  his  sovereign  at  several  courts. 

"When  an  ambassador  is  sent  abroad,  there  must  be  some 
evidence  of  his  official  position.  For  this  purpose  he  is  fur 
nished  with  credentials  certifying  his  diplomatic  character  and 
rank ;  namely  with  a  letter  of  credence,  (lettre  de  creance,) 
sometimes,  also,  with  one  of  recommendation,  and  with  a  full 
power,  indicating  the  subjects  on  which  he  is  authorized  to  treat, 
and  the  amount  of  power  with  which  he  is  invested.  Accord 
ing  to  their  rank  some  agents  of  foreign  governments  are 
directly  accredited  to  a  sovereign,  and  others  to  his  minister  of 
foreign  affairs.  Until  such  credentials  are  presented,  a  foreign 
government  may  reject,  or  on  other  evidence  receive,  the  per 
son  claiming  to  be  an  ambassador,  according  to  its  pleasure. 

§92  a. 

An  ambassador,  from  the  time  of  his  entrance  into  the  for 
eign  country  in  that  character,  until  the  time  Privileseg  of  am. 
when,  at  the  expiration  of  his  office,  he  leaves  the  ba8fiadors- 
country,  has  in  modern  days  enjoyed  very  great  privileges  or 
immunities,  which  even  the  breaking  out  of  war  before  he  can 
leave  the  country  will  not  terminate.  Even  before  he  has  had 
opportunity  to  show  his  credentials  to  the  proper  department 


148  THE    FORMS    AND    THE  §  92  a 

of  government,  he  cannot  be  injured  or  obstructed  without  a 
violation  of  international  law,  if  he  announces  his  official  char 
acter  ;  and  should  a  government  to  which  he  is  sent  refuse  to 
receive  him,  he  must  be  free  to  withdraw  without  receiving 
marks  of  disrespect.  If  he  is  recalled,  free  exit  and  passports, 
where  they  are  necessary,  must  be  granted  to  him ;  but  if  he 
remain  in  the  country  after  that  a  sufficient  time  for  removal, 
denoted  in  his  passports,  has  elapsed,  he  takes  the  jural  rela 
tion  of  any  traveller  from  his  native  land. 

The  more  essential  immunities  conceded  to  the  ambassador 
grow  out  of  the  consideration  that  he  cannot  do  the  business 
intrusted  to  him  well,  unless  his  person  be  safe,  and  he  be  in 
dependent  of  the  control  of  the  foreign  government;  and 
comity  adds  to  these  other  less  important  privileges,  as  marks 
of  respect  to  the  representative  of  a  foreign  sovereignty.  These 
immunities  have  been  arranged  under  the  heads  of  inviolability 
and  exterritoriality.  Such  for  instance,  is  Kliiber's  classifica 
tion.  But  to  this  it  may  be  objected  that  exterritoriality  may 
be  taken  in  a  narrower  and  a  more  extended  sense.  The  term 
stands,  as'we  have  already  explained  it,  for  that  legal  fiction 
which  regards  the  agents  of  a  government  in  a  foreign  land  as 
being  outside  of  the  country  where  they  discharge  their  func 
tions,  or  as  carrying  with  them  into  another  territory  almost  as 
entire  an  exemption  from  its  laws  as  if  they  were  at  home.* 
But  there  is  no  such  complete  exemption,  and  hence  it  will  be 
best,  if  we  arrange  the  rights  of  ambassadors  under  these  heads, 
to  define  what  immunities  are  allowed;  otherwise  the  term, 
by  its  vagueness,  will  lead  us  astray.  De  Martens  remarks 
(§  215),  that  the  "  extension  of  exterritoriality  pertains  only  to 
the  positive  law  of  nations,  to  treaties  or  usage,  and  is  suscep 
tible  of  modifications,  which  in  fact  it  undergoes ;  whence  it 
is  not  enough  always  to  appeal  to  exterritoriality,  in  order  to 
enjoy  those  rights  which  may  be  derived  from  the  extended 
notion  given  to  the  word." 

*  This  fiction  was  known  to  Grotius,  who  says  (II.  18,  §  4,  5)  that  as  legates 
"  fiction  e  quadam  habentur  pro  personis  mittentium,  ita  etiam  similrfictione  constitu- 
untur  quasi  extra  territorium." 


§92  a  AGENTS    OF    INTERCOURSE,    ETC.  149 

1.  When  we  speak  of  the  inviolability  of  an  ambassador,  we 
mean  that  neither  public  authority  nor  private  ^  Invlo]ability  of 
persons  can  use  any  force,  or  do  any  violence  to  ambas^durs- 
him,  without  offending  against  the  law  of  nations.     It  is  not, 
however,  intended  that  he  may  not  be  repelled  by  force,  if  he 
attempts  to  injure  other  individuals  or  to  violate  the  laws.  The 
right  of  self-defence  cannot  cease  on  his  account,  nor  can  he 
enter  places  closed  to  the  public,  nor  do  a  great  variety  of  ille 
gal  acts  without  having  passive  resistance  at  least  used  against 
him.     The  state  within  whose  bounds  he  resides,  is  bound  to 
protect  him  against  aggressions  from  its  subjects,  by  law  and 
penalty,  and  by  troops  or  a  police  force,  when  necessary.     In 
one  case  only,  apart  from  the  necessities  of  self-defence,  can 
active  force  be  exerted  upon  his  person,  and  that  is  when,  after 
committing  some  great  crime,  and  being  ordered  home,  he  re 
fuses  to  go,  when  he  may  be  removed  without  personal  injury. 

2.  Inviolability  of  person  could  not  stand  alone,  without 
protection  to  the  house,  furniture,  equipage,  and,  in  fact,  the 
people  of  the  ambassador.     We  shall  arrange  these  with  other 
immunities  under  the  head  of  exterritoriality,  and 

-,,,.-,         r,  2.  Exterritoriality. 

shall  consider  first, 

A.  his  immunity  from  the  jurisdiction  of  the  country  of 
his  sojourn,  both  criminal  and  civil. 

If  the  ambassador  were  subject  to  the  criminal  jurisdiction 
of  the  foreign  country,  his  person  could  not  be  in-  <«.>  AS  immunity 

•    -I     ,  1-i-iT-ii  •  •  fr°m   criminal  ju- 

violate,  as  ne  would  be  liable  to  arrest,  imprison- 


ment,  and  punishment  ;  nor  would  the  nature  of  the  acts  in 
separable  from  the  processes  of  criminal  laws,  be  consistent 
with  his  freedom  as  a  negotiator.  This  immunity  is  therefore 
conceded  to  ambassadors  by  all  the  nations  of  Christendom, 
and,  although  some  of  the  earlier  writers  had  some  scruples  in 
admitting  it,  or  even  contended  against  it,  the  modern  writers 
are  believed  to  be  unanimous  in  regarding  it  as  a  part  of  inter 
national  law.  For  the  exceptions  to  this  immunity  which  have 
occurred  in  extreme  cases,  see  §  92  e. 

In  the  case  of  a  native  of  the  country  still  owing  allegiance, 
but  representing  a  foreign  sovereign,  it  has  been  questioned 


150  THE    FORMS   AND    THE  §  92  a 

whether  jurisdiction,  civil  or  criminal,  is  suspended  during  the 
discharge  of  his  functions.  The  most  noted  case  in  which  such 
a  person  felt  the  severity  of  the  law,  was  that  of  Wicquefort,  a 
native-  of  Amsterdam,  who,  while  he  held  an  office  under  the 
States-general,  became  the  Duke  of  Liineburg's  resident  at  the 
Hague,  and  while  in  the  service  of  this  prince,  in  1675,  was 
accused  of  betraying  state  secrets  to  foreigners,  was  tried,  con 
victed,  and  sentenced  to  imprisonment  for  life  with  confiscation 
of  goods.*  In  this  case  it  might  with  justice  be  maintained 
that  he  held  an  office  of  responsibility,  and  could  not  be  re 
leased  from  penal  liabilities  as  long  as  it  lasted ;  if  he  took  on 
him  duties  to  a  new  sovereign,  he  was  still  accountable  to  the 
old  one.  He  betrayed  secrets  to  which  in  his  office  he  had  ac 
cess,  and  ought  therefore  to  suffer.  But  if  a  private  citizen  of 
a  country  is  acknowledged  by  its  government  as  an  ambassador 
from  another  state,  it  is  fairly  to  be  inferred  that  all  the  immu 
nities  are  conceded  to  him,  which  are  considered  to  belong  to  - 
that  class  of  persons,  and  without  which  he  could  not  freely 
discharge  its  duties.  His  sovereign  had  a  right  (§  90)  to  refuse 
to  recognize  him  in  that  relation  to  another  sovereign :  in  so 
recognizing  him  he  gives  up  jurisdiction  over  him  for  the  time 
being.f 

Opinions  have  been  divided  in  regard  to  an  ambassador's 
(6.)  and  from  civil  exemption  from  civil  jurisdiction.  Entire  exemp 
tion  in  this  respect  cannot  be  argued  from  the 
nature  of  his  functions,  and  yet  every  where  this  exemption  is 
allowed,  so  far  as  it  can  be  derived  from  the  notion  of  exterri 
toriality.  At  the  least,  according  to  Heffter,  no  step  can  be 
taken  towards  an  ambassador  which  cannot  be  taken  towards 
an  absent  stranger.  No  measures  involving  force  can  be  used 
against  his  person,  or  the  effects  which  he  has  with  him. 

Hence  the  private  person,  to  whom  an  ambassador  owes 
money,  has  no  remedy  against  him  except  through  his  sover- 

*  Comp.  Bynkersh.  de  for.  leg.  11,  and  18,  and  Wheaton's  Hist.,  p.  234. 

f  So  substantially  \Vheaton,  El.  III.  1,  §  15.  Heffter  says  the  right  of  punish 
ing  is  scarcely  taken  away  from  such  an  ambassador's  sovereign.  §  214.  Bynkersh. 
u.  s.,  holds  the  same  opinion :  "  subditos  nostros,  quamvis  alterius  Principis  legatio- 
nem  acceperint,  subditos  nostros  esse  non  desinere."  So  others. 


§  92  6  AGENTS    OF    INTERCOURSE,    ETC. 

eign,  or  by  suit  in  the  ambassador's  native  courts  after  his  re 
turn  home.  Such,  at  least,  is  the  understanding  and  practice 
in  most  countries.  Prussia  appears  to  claim  somewhat  more 
of  jurisdiction.*  In  a  case,  the  discussion  of  which  is  given  at 
great  length  by  Dr.  Wheaton,  the  owner  of  a  house  at  Berlin, 
rented  to  the  American  ambassador,  claimed  under  the  Prus 
sian  civil  code  to  detain  the  minister's  goods  found  there  at  the 
expiration  of  the  lease,  on  the  ground  that  damages  were  due 
for  injuries  done  to  the  house  during  his  occupation  of  it.  The 
government  of  Prussia  sustained  the  claimant,  but  the  discus 
sion  shows  that  while  a  pledge  given  by  an  ambassador  for  the 
security  of  a  debt  could  have  been  detained  by  the  lender,  the 
goods  in  the  house  could  not  be  kept  from  their  owner  without 
a  violation  of  international  law.  The  laws  of  the  United^ 
States,  accordingly,  "include  distress  for  rent  among  other 
legal  remedies  which  are  denied  to  the  creditors  of  a  foreign 
minister."  » 

An  ambassador  is  j^ouncl  to  observe  the  police  laws  in  re 
gard  to  public  security  and  order  within  and  without  his  hotel, 
but  cannot  be  called  to  account  for  transgression  of  them,  any 
more  than  for  his  pecuniary  obligations. 

One  or  two  exceptions  to  this  exemption  are  laid  down  by 
the  writers  beside  that  derived  from  the  ambassador's  acting 

o 

in  a  capacity  other  than  his  official  one,  which  we  shall  con 
sider  by  itself.  (§  92  e.) 

They  are,  (1.)  when  he  is  the  subject  of  the  state  where  he 
acts ;  (2.)  when  he  is  in  its  service ;  (3,)  when  he  voluntarily 
recognizes  the  jurisdiction  of  the  courts  by  appearing  before 
them  as  a  plaintiff,  and  thus  submitting  himself  to  the  defend 
ant's  court,  f 

§92  I. 

B.  The  immunity  from  local  jurisdiction  granted  to  a 
foreign  minister  extends  to  his  hotel  and  goods,  immunity  of  »m- 

TT.     ,  .  ,  bassador's     hotel 

His  house  is  a  sanctuary,  except  in  case  of  gross  and  goods. 
crime,  for  himself  and  his  retinue ;  and  that  whether  it  belongs 

*  Comp.  Wheaton,  El.  HI.  1,  §  17,  274-287,  and  Verge  on  de  Martens,  §  216. 
f  Comp.  de  Martens,  §  216  ;  Wheaton,  EL  III.  1.  §  15 ;  Bynkersh.  de  for.  leg. 


152  THE  FORMS  AND  THE  §926 

to  his  own  government,  or  is  hired,  or  is  given  to  him  for  his 
use  by  the  state  to  which  he  is  sent.*  His  goods  also,  or  all 
that  is  necessary  for  the  comfort  of  himself  and  his  family, 
together  with  his  equipage,  enjoy  the  same  exemption.  His 
papers  relating  to  the  business  of  his  embassy  are  inviolate. 
These  exemptions  are  plainly  as  essential  for  the  discharge  of 
his  duties  in  his  office,  as  is  his  personal  exemption  from  for 
eign  jurisdiction. 

It  is  to  be  observed,  however,  that  if  he  chance  to  possess 
real  property  in  the  foreign  country,  or  personal  property, 
aside  from  that  which  pertains  to  him  as  an  ambassador,  (§  92 
e)7  it  is  subject  to  the  local  laws. 

His  privileges  do  not  include  the  right  of  asylum  for  persons 
ma  hotel  no  a=y-  outside  of  his  household.  If  the  fiction  of  exter- 
•ium  for  criminals,  riforiality  explained  the  privileges  of  ambassadors, 
the  right  of  asylum  would  be  fairly  deducible  from  it,  and  a 
criminal  taking  refuge  in  such  a  sanctuary  would  be  given  up, 
if  at  all,  by  a  process  of  extradition.  But  it  so  happens  that 
the  house  of  an  ambassador  has  ceased  {o  be  an  asylum,  since 
the  notion  of  exterritoriality  has  been  most  current.  The 
right  was  attached  in  the  middle  ages  to  many  religious  places, 
and  was  conceded  after  this  analogy,  on  account  of  their  sacred- 
ness,  in  some  countries,  to  the  hotels  of  ambassadors ;  but  the 
usage,  if  we  are  not  deceived,  was  never  general  throughout 
Europe,  and  even  where  it  obtained,  as  in  Rome  and  Madrid, 
was  sometimes  opposed  and  violated  by  the  government. 
Similar  to  this  right,  if  not  an  extension  of  it,  wras  the  freedom 
or  privilege  (jus  quarteriorwri)  of  the 'quarter  of  the  city 

16.  It  docs  not  appear  that  the  ambassador  has  a  right  to  do  this  without  leave  of 
his  own  government,  for  it  may  prevent  the  due  exercise  of  his  functions. 

*  Sometimes  extraordinary  ambassadors  have  quarters  provided  for  them  by  the 
state  to  which  they  are  sent,  their  stay  being  ordinarily  short.  In  1814,  Austria  and 
England  purchased  houses  for  their  foreign  ministers  in  Paris,  and  in  1817,  Prussia, 
in  Paris  and  Petersburg.  Kluber,  §  192,  note.  Houses  for  the  reception  of  foreign 
ambassadors  were  in  use  in  the  empire  of  Charlemagne.  A  capitulary  of  A.  D.  850 
(Perz,  III,  407)  speaks  of  publicae  domus,  in  singulis  civitatibus — antiquitus  con- 
structae,  nostris  usibus  et  externarum  gentium  legationibus  satis  congruas.  The 
Romans  also  sometimes  entertained  foreign  legates  in  public  villas  outside  of  the 
walls  at  the  public  charge. 


§92c  AGENTS    OF    INTERCOURSE,    ETC.  153 

where  the  ambassador  resided,  and  which  was  indicated  by  the 
arms  of  his  sovereign.  This  right  (or  wrong  rather)  prevailed 
in  a  number  of  places,  as  at  Venice,  Rome,  Madrid,  and  du 
ring  the  meetings  for  the  choice  and  coronation  of  an  empe 
ror,  at  Frankfort  on  the  Main.  At  Rome,  in  the  16th  and 
17th  centuries,  the  harboring  of  criminals,  under  plea  of  exer 
cising  this  right,  gave  occasion  to  more  than  one  dispute  be 
tween  the  Papal  and  the  French  governments. 

It  is  now  admitted  that  if  a  transgressor,  not  of  the  ambas 
sador's  train,  takes  refuge  in  his  premises,  he  can  be  demanded 
by  the  local  authorities,  and,  if  not  delivered  up,  can  be  search 
ed  for  and  seized  within  the  hotel,  for  which  purpose  such 
force  in  breaking  doors  open  and  the  like,  may  be  used,  as  is 
necessary  for  his  apprehension.  For  as  Bynkershoek  (de  for. 
leg.  §  21)  asks,  "  legati,  ut  latrones  recipiant,  mittuntur  ?  vel, 
sine  receptione  commode  legation!  vacare  non  possunt  ? " 

It  is  also  a  freedom  commonly  allowed  to  ambassadors,  but 
rather  by  national  comity,  than  as  a  fair  deduc-  Freedom  from  im- 
tion  from  theory,  that  the  personal  effects  of  an  posts>  etc- 
ambassador  are  exempt  from  taxation,  and  that  duties  are  re 
mitted  on  articles  from  abroad  which  he  needs  for  himself  and 
his  family.  His  importations,  however,  before  they  reach  his 
hotel,  are  liable  to  the  search  of  custom-house  officers,  and  if 
he  has  sent  for  contraband  goods,  they  may  be  confiscated. 
As  for  the  rest,  he  is  obliged  to  pay  taxes  (even  on  his  hotel, 
if  it  belongs  to  him  or  to  his  government),  tolls,  and  postages, 
but  is  exempt  from  the  quartering  of  troops.* 

§  92  c. 

C.  The  liberty  of  worship  in  a  foreign  land  is  now  conceded 
by  the  law  and  usage  of  Christian  nations  to  am-  , 

"  °  •      Ambassadors  lib- 

bassadors  of  every  rank,  even  when  their  religion  erty  of  worshiP- 
or  sect  is  not  tolerated  by  the  laws  of  the  land.     This  liberty 
might  be  deduced  from  the  rule  of  exterritoriality,  as  in  the 
parallel  case  of  a  ship  of  war  in  a  foreign  port,  or  still  better, 
from  the  consideration  that,  religion  being  a  prime  necessity 

*  De  Martens,  §§  227-229 ;  Wheaton's  El.  III.  1,  §  18. 


154:  THE    FORMS    AND    THE  §  92  c 

of  man's  nature,  an  earnest  nation  could  have  no  diplomatic 
intercourse  with  another  nation,  within  whose  territory  its 
religion  was  prohibited.  But  the  argument,  which  would  sup 
port  this  liberty  of  worship  by  natural  justice  and  the  rights 
of  conscience,  has  here  no  application,  since  a  great  part  of  the 
nations  of  Christendom  have  always  assumed  the  rigjit  of  al 
lowing  or  prohibiting  outward  worship  at  their  pleasure. 

This  freedom  of  worship  extends  to  the  household  of  the 
ambassador,  and  sometimes  by  comity  or  connivance,  if  not  by 
treaty,  to  his  countrymen,  who  may  be  residing  at  the  same 
capital.  It  is  not  limited  by  his  presence,  but  when  he  is  on  a 
journey,  or  during  the  intervals  between  two  legations,  it  may 
still  be  kept  up.  But  his  household,  and  even  his  wife,  it  is 
held, .if  of  another  religion  than  his  own,  have  no  separate 
right  of  worship.  It  is  held,  also,  that  if  there  be  religious 
rites  publicly  allowed,  of  the  same  sect  to  which  the  ambas 
sador  belongs  and  where  he  is  residing,  he  may  be  forbidden 
to  have  a  chapel  and  services  of  his  own,  which  now  are  no 
longer  necessary.  Thus,  when  the  Emperor  Joseph  II.  grant 
ed  toleration  at  Yienna  to  the  adherents  of  the  Augsburg  Con 
fession,  it  was  declared  that  domestic  worship  at  the  hotel  of 
Lutheran  ambassadors  would  no  more  be  permitted.  But  in 
Constantinople,  where  the  Greek  Church  is  tolerated,  the  Eus- 
sian  ambassador  has  a  public  place  of  worship,  after  the  obser 
vances  of  that  religion,  under  his  protection. 

This  worship  may  be  such  in  the  fullest  sense,  that  is,  there 
may  be  a  chaplain  or  chaplains  and  whatever  other  persons  are 
necessary  for  the  services  of  religion,  due  administration  of  the 
sacraments,  and  the  like.  But  it  must  be  strictly  house- 
worship,  in  a  room  fit  for  the  purpose,  yet  without  bell,  organ, 
or  other  sign,  indicating  to  passengers  in  the  street  that  a 
chapel  is  near  by.  And  it  is  held,  that  natives  of  the  country 
cannot,  without  leave  from  the  government,  partake  in  the 
services ;  nor  has  the  chaplain  a  right  to  appear  abroad  in  his 
canonicals.  A  French  ambassador  at  Stockholm,  Chanut, 
claimed  the  right  of  admitting  Swedes  to  his  Catholic  chapel, 
at  services  not  tolerated  in  the  country,  which  amounted  to  a 

t 


§92c?  AGENTS    OF    INTERCOURSE,    ETC.  155 

claim  of  power  to  suspend  the  laws.  When,  in  1661,  the 
Dutch  imprisoned  the  French  ambassador's  chaplain  for  per 
forming  mass,  their  reason  was  that  the  ambassador  had  left  the 
country.  Most  preposterous  was  the  claim  of  Philip  II.  of 
Spain  that  the  trains  of  ambassadors  at  Madrid  should  go  to 
mass. 

It  is  held,  that  the  ambassador  may  not  set  up  worship  as 
his  own  affair,  but  by  leave  of  his  government.  "Where  free 
dom  of  worship,  as  with  us,  is  unlimited,  all  these  restrictions 
are  inapplicable,  unless  imposed  by  way  of  reciprocity  ;  and  the 
necessity  for*eeparate  worship  in  general  ceases.  Treaty  some 
times  gives  greater  liberty  than  is  here  laid  down.* 


D.  The  same  exemption  from  local  jurisdiction,  which  the 
ambassador  himself  enjoys,  is  granted  by  the  law  Privi]ege8  of  hia 
of  nations  to  his  family  and  train,  as  to  his  chap-  familyaiid  train- 
lain,  physician,  private  secretary,  and  secretary  of  legation, 
and  to  his  domestic  servants.  Dr.  Wheaton  remarks,  in  regard 
to  the  latter,  that  the  laws  and  usages  of  most  countries  call 
upon  ambassadors  to  furnish  official  lists  of  their  servants,  that 
they  may  be  entitled  to  their  exemption.!  The  secretaries  are 
peculiarly  protected,  as  being  necessary  to  carry  on  the  business 
of  the  embassy  ;  and  above  all,  the  secretary  of  legation,  as  a 
responsible  person  intrusted  by  the  ambassador's  government 
with  more  or  less  of  his  power  during  his  absence  or  at  his 
death,  and  by  virtue  of  his  appointment  a  public  officer. 

The  reasons  for  this  exemption  in  the  case  of  servants,  es 
pecially  of  natives  of  the  country  whom  the  foreign  minister 
hires,  are  of  little  cogency,  since  others  could  be  speedily  found 
to  take  their  places  ;  but  the  exemption  is  well  established. 
Should  it,  however,  appear  that  a  criminal  was  taken  into  an 
ambassador's  service  in  order  to  protect  him,  it  is  doubtful 

*  Comp.  Kliiber,  §  215  ;  Heffler,  §  213  ;  De  Martens,  §§  222-226. 

f  This  had  become  obsolete  for  a  while  before  Bynkershoek  wrote  his  work  De 
foro  legatorum.  In  chap.  16,  he  says,  "  optimo  exemplo  in  quibusdam  aulis  olim 
receptum  fuit,  ut  legatus  teneretur  exhibere  nomenclaturam  comitum  suorum,  sed 
pessimo  exemplo  id  nunc  ubique  gentium  negligitur." 


156  THE    FORMS    AND    THE  §  92  d 

whether  this  would  be  endured, — at  least  it  would  be  a  ground 
of  complaint  against  the  employer ; — and  if  any  of  his  servants 
while  in  his  employment  carries  on  a  traffic  in  which  he  incurs 
debts,  such  person  loses  his  privileges ;  he  is  considered  to  sus 
tain  two  characters,  one  of  which  will  not  shield  him  from  the 
consequences  of  acts  clone  in  the  other.*  An  ambassador  may 
also  give  up  his  control  over  domestics  hired  within  the  foreign 
country,  but  perhaps  cannot  do  this  in  regard  to  those  whom 
he  has  brought  with  him.f  At  several  congresses,  as  at  Mini 
ster  and  JSTymwegen,  the  assembled  envoys,  in  order  to  check 
the  riotous  conduct  of  their  herd  of  domestics,  gave  the  police 
over  them  into  the  hands  of  the  magistrates  of  the  town. 

E.  From  the  rule  of  exterritoriality  strictly  carried  out,  and 
An  ambassador's  from  the  necessity  of  some  government  over  an 

power     over    his  ,  ..          .-IT  11  •• 

suite.  ambassador's  train,  it  might  be  argued  that  juris 

diction  over  them,  criminal  as  well  as  civil,  ought  to  be  lodged 
in  him.  If,  however,  such  power  pertained  to  him,  it  could 
only  be  by  the  laws  of  his  own  country.  But  then  a  foreign 
government  cannot  be  expected  to  permit  a  stranger  to  per 
form  the  highest  acts  of  criminal  justice  within  its  territory, 
unless  it  be  for  the  purpose  of  carrying  out  military  law  on  a 
vessel  of  war,  or  in  an  army  passing  through  the  land.  Hence 
the  jurisdiction  of  ambassadors  in  modern  times  over  their 
trains  is  actually  confined  to  subordinate  measures.  In  criminal 
cases  a  follower  of  his,  committing  a  crime  outside  of  the  hotel, 
is  delivered  up  to  him,  he  gathers  and  prepares  the  evidence, 
and  sends  the  accused  home  for  trial.  He  exercises  volun 
tary  jurisdiction,  as  far  as  his  suite,  and,  if  permitted  by  the 
foreign  and  his  own  country,  as  far  as  his  countrymen  sojourning 
near  him  are  concerned,  in  receiving  and  legalizing  testaments, 
authenticating  contracts,  affixing  his  seal,  and  the  Iike4  "  But 
the  right  of  contentious  jurisdiction,"  says  Heifter,  "  is  nowhere, 
within  my  knowledge,  conceded  to  ambassadors  at  Christian 

*  Bynkershoek  asks  whether  those  who  follow  in  an  ambassador's  train,  "  unice 
ut  lucre  suo  consulant,  institores  forte  et  mercatores,"  are  his  companions,  and 
decides  in  the  negative.  De  for.  leg.  §  15,  ad  calc. 

f  Heffter,  §  221 ;  Yattel,  iv.  9,  §  124. 

\  Heffter,  §  216. 


§  92  e  AGENTS    OF    INTERCOURSE,    ETC. 

courts,  even  for  the  persons  of  their  suite ;  but  they  here  simply 
execute  requisitions  directed  to  them,  especially  in  regard  to 
the  hearing  of  witnesses,  and  all  this  according  to  the  laws  of 
their  own  country." 

When  a  crime  is  committed  by  a  native  servant  belonging 
to  the  foreign  minister's  household,  or  when  persons  attached 
to  the  trains  of  two  ambassadors  break  the  public  peace  by 
quarrels,  the  only  convenient  way  of  proceeding  is  to  deliver 
them  over  to  the  courts  of  the  country  to  be  tried. 

Formerly  ambassadors  sometimes  exercised  tlie  power  of 
blood  over  their  retinue.  The  most  noted  case  of  this  kind 
occurred  at  London  in  1603,  when  Sully,  then  Marquis  of 
Rosny,  was  ambassador  there.  One  of  his  people  having  killed 
an  Englishman  with  whom  he  had  a  quarrel  at  a  brothel,  Sully 
assembled  a  council  or  jury  of  Frenchmen,  condemned  the  man 
to  death,  and  delivered  him  up  to  the  English  authorities  for 
execution.  He  was  pardoned  by  James  I.,  whereupon  the 
French  claimed  that,  as  he  was  judged  by  his  own  tribunal,  the 
pardon  was  unauthorized.* 

§92*. 

An  ambassador  can  claim  exemption  only  for  the  property 
which  he  holds  in  the  foreign  country  as  an  offi-  Limits  of  thepriv- 

.    i  Tr>i       i  T  T  lieges   of  an   am- 

cial  person.  It  he  has  another  character,  as  that  ba^ador. 
of  p  merchant  or  a  trustee,  his  property  so  held  is  subject  to  the 
laws  of  the  land.  Formerly  it  was  not  uncommon  for  mer 
chants  to  represent  the  minor  princes  of  Europe  at  the  smaller 
courts.  Bynkershoek  says  that  in  his  time  they  made  great 
gains  by  importing  goods  free  of  duty,  on  the  pretence  that  these 
were  necessary  for  their  own  use,  and  then  selling  them.  But 
the  practice  of  employing  merchants  as  foreign  ministers  or 
residents  is  believed  to  have  become  almost  obsolete,  and 
this  source  of  gain  is  cut  off  by  better  regulations.  (§  92  I.) 

There  is  now  a  very  general  uniformity  both  of  opinion 
and  practice,  that  ambassadors  committing  grave  Ambassadors  . 
crimes  whether  against  the  state,  or  against  moral  crimTs.UlD 

*  Ward,  II.  316. 


158  THE    FORMS    AND    THE  §92* 

order,  must  be  remanded  home  to  their  sovereign  for  judg 
ment,  and  that  only  self-defence  will  allow  the  killing  of  such 
a  functionary.  But  neither  opinion  nor  practice  was  so  uni 
form  two  centuries  and  more  ago,  especially  in  England.  The 
case  of  Leslie,  bishop  of  Rosse,  to  which  we  have  already  re 
ferred,  furnishes  us  with  the  opinion  of  English  lawyers  on  the 
question  whether  an  ambassador,  cognizant  of  and  privy  to  a 
treason,  is  punishable  by  the  prince,  in  whose  realm  and  against 
whom  the  treason  is  committed.  The  answer  was,  "  We  do 
think  that  ad  ambassador,  aiding  and  comforting  any  traitor  in 
his  treason  toward  the  prince  with  whom  he  pretendeth  to  be 
ambassador  in  his  realm,  knowing  the  same  treason,  is  punish 
able  by  the  same  prince  against  whom  such  treason  is  commit 
ted."  Leslie  stoutly  protested  against  all  right  of  jurisdiction 
over  him,  and  was  not  tried,  but  was  detained  for  some  time 
in  prison  and  then  banished  the  kingdom.  A  few  years 
afterwards,  a  contrary  opinion  was  given  by  men  better  in 
formed  in  the  law  of  nations,  Albericus  Gentilis  and  Francis 
Ilotman,  in  the  case  of  Mendoza,  the  Spanish  minister  in 
England,  who  had  plotted  to  bring  in  foreign  soldiers  and 
dethrone  Elizabeth  :  they  decided  that  an  ambassador  who  had 
even  been  concerned  in  a  conspiracy  could  not  be  put  to  death, 
but  must  be  remanded  to  his  prince  for  punishment.  And  a 
little  after  in  the  reign  of  James  I.,  when  the  Spanish  ambas 
sadors  charged  the  Duke  of  Buckingham  with  a  conspiracy 
against  the  king,  which  was  regarded  as  false  and  libellous,  Sir 
Robert  Cotton,  being  consulted  whether  any  proceedings  could 
be  instituted  against  them,  maintained  that  an  ambassador  as 
representing  the  person  of  a  sovereign  prince  is  "  exempt  from 
regal  trial :  that  all  actions  of  one  so  qualified  are  made  the 
act  of  his  master  until  he  disavow  them :  and  that  the  injuries 
of  one  absolute  prince  to  another  are  factum  Jiostilitatis,  not 
treason."  And  he  proposed  "  that  a  formal  complaint  against 
the  ambassador  should  be  sent  to  the  king  of  Spain  requiring 
such  justice  to  be  done  upon  him  as  by  leagues  of  amity  and 
the  law  of  nations  is  usual,  which  if  he  refused,  it  would  be  a 
dissolution  of  amity,  and  equivalent  to  a  declaration  of  wrar." 


§92e  AGENTS    OF    INTERCOURSE,    ETC.  159 

And  yet,  at  the  same  time  when  such  doctrine  now  universally 
regarded  as  sound  was  taught,  Coke  thinks  that  "  if  an  ambassa 
dor  commits  a  crime  which  is  not  merely  a  malum  prohibitum 
by  act  of  parliament,  private  law,  or  custom  of  the  realm,  but 
contra  jus  gentium^  as  treason,  felony,  adultery,  he  loses  privi 
lege,  and  may  be  punished  in  England  like  any  other  alien." 
This  opinion  had  weight  with  succeeding  lawyers.  Foster  pre 
sents  a  view  somewhat  similar  to  this,  namely,  that  although 
ambassadors  owe  no  allegiance  to  the  sovereign  of  the  country, 
they  are  members  of  society,  and  therefore  bound  by  the  eter 
nal  universal  law  which  keeps  all  civil  societies  together ;  and 
hence  may  be  brought  to  justice  like  other  offenders,  if  they 
commit  those  enormous  offences,  which  are  against  the  light  of 
nature  and  the  well-being  of  all  society.  And  Sir  Matthew 
Hale  expresses  the  opinion,  that  if  the  ambassador  or  his  asso 
ciates  commit  any  capital  offence,  save  treason,  as  rape,  mur 
der,  or  theft,  they  may  be  proceeded  against  by  indictment  in 
the  ordinary  course  of  justice,  like  other  aliens. 

The  case  which  seems  to  have  led  him  to  this  opinion  was 
the  noted  one  of  Sa,  although  it  applied  only  to  the  companions 
of  ambassadors.  Sa,  in  1653,  during  the  commonwealth,  being 
the  brother  of  the  Portuguese  ambassador  and  one  of  his  train, 
fell  into  a  quarrel  with  one  Gerrard,  and  wounded  him,  but  he 
was  saved  from  death  by  the  interference  of  another  gentle 
man  standing  by.  Thereupon,  with  other  Portuguese,  fifty  in 
number,  Sa  came  on  the  next  night  to  the  same  place,  and 
with  his  associates  killed  one  person  and  wounded  many.  The 
ambassador  was  required  to  deliver  up  the  delinquents,  and 
Cromwell  resolved  that  Sa  should  be  tried  by  the  law  of  the 
land.  The  case  was  referred  to  a  special  court  of  men  learned 
in  the  law  who  decided  that  he  could  be  indicted.  He  was 
tried  before  a  jury,  found  guilty,  and  suffered  death.  It  seems 
from  a  statement  of  the  case,  that  if  he  had  been  an  ambassa 
dor,  his  privilege  would  have  protected  him,  but  a  distinction 
was  made  between  the  principal  and  the  members  of  his  train. 

The  law  of  England  afforded  no  sufficient  protection  to 
ambassadors  until  1708,  when,  on  the  occasion  of  the  arrest  for 


160  THE    FORMS    AND    THE  §93 

debt  and  ill  usage  of  the  Russian  minister,  a  very  severe  law 
was  enacted,  by  which  it  rested  with  the  chancellor  and  chief 
justices,  or  any  two  of  them,  to  inflict  such  punishment  as  they 
should  think  fit  on  the  person  whom  they  should  find  guilty  of 
bringing  a  suit  against  a  minister  or  his  servants. 

A  little  after  this,  in  171 7,  Gyllenborg,  the  Swedish  am 
bassador  in  England,  was  engaged  in  a  conspiracy  to  invade 
the  country  and  dethrone  the  first  George.  He  was  arrested, 
his  dispatches  seized,  and  his  cabinet  broken  open.  The  case 
so  far  was  like  many  acts  of  violent  infraction  of  international 
law,  and  deserves  to  be  mentioned,  only  because  the  secretaries 
of  state  maintained,  by  way  of  apology  to  the  other  ministers 
resident  in  London,  that  the  measure  was  necessary  for  the 
peace  of  the  kingdom.*  Extreme  necessity  would  be  a  good 
plea  even  for  killing  an  ambassador,  as  Bynkershoek  says  at 
the  end  of  his  work  de  foro  legatorum,  but  the  question  in  such 
cases  is,  could  not  simple  sending  home,  forcible  expulsion,  if 
necessary,  answer  every  purpose.*)- 

§93. 

Bynkershoek  lays  it  down  "  non  valere  jus  legationis  nisi 
Relations  of  an  inter  utrumque  Principem,  qui  mittit  le^atos,  et 

ambassador    to   a  *      ,  n  i          • 

third  power.  ad  quem  missi  sunt;  csetera  [legatos]  privates 
esse."  Grotius  had  already  taught  the  same  thing,  and  nearly 
all  modern  writers  concur  in  this  opinion.  Vattel,  however, 
(TV.  7,  §  84)  maintains  that  innocent  transit  through  a  third 

*  One  of  the  most  atrocious  violations  of  international  law  on  record,  was  the 
murder  of  two  French  ministers,  Bonnier  and  Roberjot,  on  their  way  home  from  the 
Congress  of  Rastadt  in  April,  1797,  by  Austrian  hussars.  This  seems  to  have  been 
a  piece  of  villainy  on  the  part  of  an  Austrian  minister  of  State, — carried  further  by 
the  soldiers  than  was  intended, — for  the  purpose  of  getting  possession  of  valuable 
papers. 

f  This  subsection  is  principally  drawn  from  Ward's  History,  II.  292-330.  For 
the  law  of  7  Anne,  c.  12,  referred  to,  see  Kent,  L,  183,  Lect.-ix.  Coke,  4th  Instit. 
153,  Foster's  crown-law,  188,  Hale's  pleas  of  the  crown,  and  the  passages  referred 
to  in  the  text  are  cited  by  Ward.  Comp.  also  Bynkersh.  de  for.  leg.  18,  who,  after 
citing  the  few  examples  to  be  found  of  regular  legal  punishments  of  foreign  ministers, 
says,  "  novi  asvi  exempla  de  legatis  qui  varie  deliquerant  non  punitis  tot  ubique  in 
annalibus  occurrunt,  ut  ipsa  copia  laboremus." 


§  93  AGENTS    OF    INTERCOURSE,    ETC. 

country  may  not  "be  refused  to  an  ambassador,  unless  suspected 
of  sinister  designs  on  his  way ;  that  to  insult  him  is  to  insult 
Ms  master  and  the  whole  nation  to  which  he  belongs ;  and  that 
to  injure  him  is  picking  a  quarrel  with  all  nations  "  who  are 
concerned  to  maintain  as  sacred  the  right  and  means  of  com 
municating  together  and  treating  of  their  affairs."  There  is 
so  much  truth  in  this,  that  an  injury  done  to  an  ambassador, 
on  his  way  through  a  land  where  his  countrymen  enjoy  protec 
tion,  is  a  far  greater  crime  than  one  done  to  a  private  man,  and 
that  all  comity  and  hospitality  ought  to  be  shown  to  him. 
But  his  status  is  not  the  same  as  in  the  land  to  which  he  is  accre 
dited.  The  exterritorial  immunities  avail  only  there,  and  in 
violability  elsewhere  is  of  a  qualified  kind.  Hence  (1.)  a  state 
may  refuse  transit  to  a  foreign  minister ;  (2.)  he  and  his  goods 
may  be  liable  to  seizure ;  (3.)  if  he  enters  a  territory  where-  he 
is  an  enemy,  or  is  bound  to  one  which  is  hostile  to  that  through 
which  he  is  passing,  he  may  be  seized  and  impeded  from  pursu 
ing  his  journey  ;  and  all  this  without  offence  against  interna 
tional  law.  And  yet  it  appears  to  be  desirable,  both  on  the 
ground  of  the  general  good  and  on  the  score  of  justice,  that 
ambassadors  should  everywhere  be  safe  at  least  from  violence 
and  from  arrest. 

Quite  a  number  of  examples  might  be  cited,  where  the 
rights  of  legation  have  been  treated  as  of  no  account  by  third 
powers  and  by  enemies.  The  noted  case  mentioned  by  Thu- 
cydides  (II.  67),  in  which  the  Athenians  caught  in  Thrace  and 
killed  envoys  from  the  Peloponnesians,  on  their  way  to  Persia, 
where  they  hoped  to  bring  the  great  king  into  their  alliance 
against  Athens,  might  have  been  an  act  of  cruelty,  but  was  not 
against  the  modern  jus  inter  gentes.  Similar  to  this  was  the 
case  of  Rin9on  and  Fregoze,  envoys  of  Francis  I.  of  France, 
passing  through  the  duchy  of  Milan,  the  one  on  his  way  to 
Yenice,  the  other  to  the  Porte.  This  was  then  hostile  territory, 
and  they  were  seized  and  killed  seemingly  by  the  procurement 
of  the  governor  of  Milan,  the  emperor  Charles  Y.  showing 
indifference  to  the  crime.  "Alia  qusestio,"  says  Bynkersh, 
(u.  s.),  speaking  of  this  affair,  "  de  jure  legationis,  alia  de  jure 
11 


162  THE    FORMS    AND    THE  §94 

honestatis."  Refusals  of  passports,  detentions  and  expulsions 
from  the  country  have  been  not  uncommon.  Thus  in  1572, 
when  all  Frenchmen  in  England  found  without  a  passport 
were  ordered  to  be  arrested,  du  Croc,  the  French  minister 
to  Scotland,  on  his  way  thither,  shared  their  fate,  at  which 
when  the  French  court  complained,  Secretary  "Walsingham 
averred  that  he  was  justly  detained  for  want  of  a  passport.  In 
the  same  century,  a  Turkish  ambassador  was  arrested  on  his 
way  through  Venice  to  France,  and  when  the  French  resident 
there  claimed  his  liberation,  the  republic  answered  that  a  sov 
ereign  power  is  not  bound  to  recognize  the  function  of  a  public 
minister,  unless  his  credentials  are  addressed  to  itself.  When, 
in  1573,  the  Duke  of  Anjou,  afterwards  Henry  III.  of  France, 
was  elected  king  of  Poland,  the  ambassadors  who  were  on 
their  way  to  announce  his  election,  were  refused  a  passport  in 
Saxony,  and  detained  by  the  Elector.  In  1744,  Marshal 
Belleisle,  while  passing  through  Hanover  in  the  capacity  of  an 
ambassador,  was  seized  by  the  English,  then  at  war  with 
France,  and  carried  as  a  prisoner  to  England.  And  in  1763, 
Count  Wartensleben,  minister  of  the  States-general  to  a  part 
of  the  German  powers,  was  arrested  at  Cassel  as  executor  of  a 
will.  But  there  is  no  right  whatever  of  seizing  an  enemy's 
ambassador  on  neutral  soil  or  a  neutral  vessel.  (Comp.  §§  163, 


The  rank  of  an  ambassador  has  nothing  to  do  with  the 
transaction  of  affairs,  —  except  so  far  as  the  capa-  Rank  of  ambaasa. 
city  to  represent  their  sovereign  may  be  restrict-  dor8- 
ed  to  those  of  orie  class,  —  but  only  to  the  ceremonial  of  courts. 
Formerly,  there  was  but  one  class  of  foreign  ministers,  or  at 
most  two  —  ambassadors  and  agents  —  known  to  Europe,  but 
since  the  beginning  of  the  eighteenth  century  there  have  been 
three  grades.  Moreover,  sometimes  extraordinary  have  claimed 
precedence  over  ordinary  ministers  of  the  same  class.  The 
quarrels  of  ambassadors  about  rank  led  to  a  regulation  in  the 
protocol  of  the  plenipotentiaries  of  the  eight  principal  powers 


§94  AGENTS    OF    INTERCOURSE,    ETC.  163 

concerned  in  the  congress  of  Vienna,  dated  March  19,  1815, 
which  is  to  the  following  effect : — 

"  To  prevent  the  embarrassments  which  have  often  occurred  and  which 
may  yet  arise  from  the  claims  to  precedence  between  different  diplomatic 
agents,  the  plenipotentiaries  of  the  powers  signing  the  treaty  of  Paris  have 
agreed  to  the  following  articles ;  and  they  feel  it  their  duty  to  ask  those  of 
other  crowned  heads  to  adopt  the  same  regulation  : 

ART.  I.    Diplomatic  employes  are  divided  into  three  classes; 
that  of  ambassadors,  legates,  or  nuncios ; 
that  of  envoys,  ministers,  or  others  accredited  to  sovereigns ; 
that  of  charges  d'affaires  accredited  to  ministers  charged  with  for 
eign  affairs. 

ART.  II.  Ambassadors,  legates,  or  nuncios  alone  have  the  representa 
tive  character. 

ART.  III.  Diplomatic  employes  on  an  extraordinary  mission  have  not 
for  that  reason  any  superiority  of  rank. 

ART.  IV.  Diplomatic  employes  shall  take  rank  among  themselves  in 
each  class  according  to  the  date  of  the  official  notification  of  their  arrival. 

The  present  rule  shall  bring  with  it  no  innovation  in  regard  to  the  rep 
resentatives  of  the  Pope. 

ART.  V.  There  shall  be  in  each  state  a  uniform  mode  determined  upon 
for  the  reception  of  the  diplomatic  employes  of  each  class. 

ART.  VI.  The  ties  of  relationship  or  of  family  alliance  between  courts 
give  no  rank  to  their  diplomatic  employes.  The  same  is  true  of  political  ties. 

ART.  VII.  In  the  acts  or  treaties  between  several  powers  which  admit 
of  the  alternat^  the  lot  shall  decide  between  the  ministers,  as  to  the  order 
to  be  followed  in  signatures."  * 

In  the  protocol  of  the  congress  of  Aix-la-Chapelle,  dated 
November  21,  1818,  a  new  class  of  ministers  was  constituted 
by  the  plenipotentiaries  of  the  five  great  powers.  They  say — 

"  To  avoid  the  disagreeable  discussions  which  may  arise  in 
the  future  on  a  point  of  diplomatic  etiquette,  which  the  rule 
annexed  to  the  reces  of  Yienna,  by  which  questions  of  rank 
were  regulated,  does  not  seem  to  have  provided  for,  it  is 
decided  between  the  five  courts,  that  resident  ministers  accre- 

*  By  the  alternat  is  intended  the  practice,  sometimes  adopted  in  signing  conven 
tions,  of  alternating  in  the  order  of  priority  of  signature,  according  to  some  fixed 
rule,  so  as  to  cut  off  questions  of  rank.  The  lot  has  also  been  used.  Comp.  Kliiber, 
§§  104-106. 


164:  THE    FORMS    AND    THE  §  94 

dited  near  them  shall  form,  in  respect  to  their  rank,  an  inter 
mediate  class  between  ministers  of  the  second  order  and  charges 
d'affaires" 

According  to  these  rules,  on  which  the  present  practice 
everywhere  is  based,  there  are  four  classes  of  diplomatic  agents. 
To  the  first  belong  ambassadors  of  temporal  powers,  together 
with  legates  a  or  de  latere  and  nuncios  of  the  Pope.  *  To  the 
second  all  diplomatic  employes  accredited  to  sovereigns, 
whether  called  envoys,  ministers,  ministers  plenipotentiary,  or 
intermmcios.  To  the  third  resident  ministers  accredited  to 
sovereigns.  To  the  fourth  charges  d'affaires  accredited  to 
ministers  of  foreign  affairs,  with  whom  would  be  reckoned  con 
suls  invested  with  diplomatic  functions.f 

In  regard  to  the  rank  of  the  minister  who  shall  represent 
a  state  at  a  particular  court,  the  general  rule  is  that  one  of 
such  rank  and  title  is  sent,  as  has  been  usually  received  from 
the  other  party ;  and  that  the  sovereigns  having  a  royal  title 
neither  send  ministers  of  the  first  rank,  nor  receive  them  from 
inferior  powers. £ 

In  regard  to  diplomatic  etiquette  Dr.  Wheaton  observes, 
that  while  it  is  in  great  part  a  code  of  manners,  and  not  of 
laws,  there  are  certain  rules,  the  breach  of  which  may  hinder 
the  performance  of  more  serious  duties.  Such  is  the  rule  re 
quiring  a  reciprocation  of  diplomatic  visits  between  ministers 
resident  at  the  same  court. 

As  for  the  ceremonial  of  courts  an  ambassador  is  to  regard 
himself.the  representative  of  national  politeness  and  goodwill, 
but  to  submit  to  no  ceremony  abroad  which  would  be  account- 

*  There  is  no  distinction  between  legates  a  and  legates  de  latere.  These  are 
cardinals,  nuncios  are  not.  Internuncios  form  an  inferior  grade  of  papal  diplomats, 
belonging  to  the  second  or  third  class.  From  early  times  the  bishop  of  Rome  had 
vicars,  delegates,  or  legates,  in  the  countries  of  Europe,  who  had  oversight  of  reli 
gious  affairs  and  some  delegated  jurisdiction.  Legates  for  some  time  had  a  perma 
nent  office,  which  might  be  attached  to  a  particular  bishopric.  Only  in  modern  days 
have  these  representatives  of  the  Pope  become  assimilated  to  the  envoys  from  tem 
poral  powers.  In  France  by  the  concordat  of  1801,  ah1  intermeddling  with  the 
affairs  of  the  Gallican  church  was  prohibited  to  them,  by  whatever  name  they  went. 
f  Comp.  Heffter,  §  208.  \  Heffier,  §  209. 


§  94  AGENTS    OF    INTERCOURSE,    ETC.  165 

ed  degrading  at  home ;  for  nothing  can  be  demanded  of  him 
inconsistent  with  the  honor  of  his  country.  A  question  some 
what  agitated  among  us,  who  have  no  distinct  costume  for  the 
chief  magistrate  or  for  those  who  wait  on  him,  is,  In  what 
costume  should  our  diplomatic  agents  appear  at  foreign  courts  ? 
In  none  other,  it  may  be  answered,  than  such  as  is  appropriate 
when  we  pay  our  respects  to  the  President  of  the  United 
States,  unless  another  is  expressly  prescribed.  The  rule  is  to 
emanate  from  home,  and  not  from  abroad ;  and  no  rule,  it  is  to 
be  hoped,  will  ever  be  given  out,  inconsistent  wdth  the  severe 
simplicity  of  a  nation  without  a  court. 

An  ambassador  may  be  recalled,  or  sent  home,  or  for  some 
urgent  reason  declare  his  mission  terminated,  or  it  may  expire 
by  its  own  limitation,  or  by  the  completion  of  a  certain  official 
work,  or  by  the  death  of  the  sovereign  sending  the  ambassador, 
or  of  the  sovereign  to  whom  he  is  sent,  or  yet  again  by  a 
change  in  his  diplomatic  rank.  When,  for  any  cause  not  im 
plying  personal  or  national  misunderstanding,  his  mission  is 
terminated,  a  letter  of  recall  is  generally  necessary,  which  he 
is  to  deliver  up,  and  ask  for  an  audience  to  take  leave  of  the 
sovereign  or  chief  magistrate  of  the  country  where  he  has  been 
residing.  And  again,  when  his  rank  has  been  changed  with 
out  removal  from  his  station,  he  presents  a  letter  of  recall  and 
one  of  credence,  as  at  first.* 

The  %  inviolability  of  foreign  ministers  belongs  also  to 
heralds,  bearers  of  flags  of  truce,  etc.  (Comp.  §  134.)  Couriers 
and  bearers  of  despatches  are  privileged  persons,  as  far  as  is 
necessary  for  their  particular  service.  But  agents  attending 
to  the  private  affairs  of  princes,  and  secret  envoys,  when  not 
accredited,  are  not  entitled  to  the  privileges  of  ambassadors 
under  the  law  of  nations. 

*  For  all  the  details  of  an  ambassador's  duty  the  Guide  Diplomatique  of  Ch.  de 
Martens  (4th  edition),  Paris,  1851,  is  probably  the  best  book.  The  second  volume 
is  a  kind  of  complete  letter  writer,  useful,  no  doubt,  to  raw  hands.  But  unfortunate 
ly  the  book  is  in  French,  and,  so  far  as  I  know,  has  not  been  translated  into  English. 
Would  it  not  be  a  good  wotk  to  set  up  a  French  school  at  Washington  for  members 
of  Congress  expecting  to  go  on  missions  ? 


166  THE  FORMS  AND  THE  §95 

§95. 

The  commercial  agents  of  a  government,  residing  in  foreign 
parts,  and  charged  with  the  duty  of  promoting 
the  commercial  interests  of  the  state,  and  espe 
cially  of  its  individual  citizens  or  subjects,  are  called  consuls. 
These,  under  the  regulations  of  some  countries  are  of  different 
grades,  being  either  consuls-general,  consuls,  or  vice-consuls, 
from  whom  consular  agents  differ  little.  The  consular  office, 
also,  may  have  ,  a  connection  with  that  of  diplomatic  agents. 
(§94.) 

Nothing  exactly  like  the  office  of  consuls  was  known  to  the 
Origin  of  the  con-  ancients.  The  nearest  resemblance  to  it  was  borne 
by  the  proxeni  of  Greece,  who,  as  their  name 
implies,  stood  in  the  relation  of  hospitality  to  a  public  body  or 
state,  and  like  other  hosts  and  guests,  might  hand  down  the 
office  in  their  family.  Their  chief  duties  were  to  entertain  and 
honor  the  ambassadors  of  the, foreign  state  within  the  country 
where  they  resided,  to  help  in  distress  its  private  citizens  doing 
business  there,  and  perhaps  to  represent  them  in  commercial 
suits.* 

The  consuls  of  the  middle  ages,  so  far  as  they  resembled 
modern  consuls,  seem  to  have  been  of  two  kinds ;  first,  a  col 
lege  of  judges  or  arbitrators,  whose  functions  were  exercised 
within  the  city  or  state  which  appointed  them,  and  secondly 
those  who  were  chosen  to  settle  disputes  among  the  merchants 
of  their  town  who  resided  in  a  foreign  town  or  district.  As 
for  the  first  class  it  was  not  strange  that  merchants,  who  form 
ed  guilds  by  themselves,  should  have  magistrates  of  their  own ; 
and  the  name  given  to  them,  consuls  of  the  merchants,  or  of 
the  sea,  was  borrowed  from  one  of  the  prevailing  names  of  the 
head  officers  of  many  Italian  cities,  f  As  for  the  second,  it 
can  be  traced  back  to  century  XII.  In  1190,  a  charta  of  king 
Guy,  of  Jerusalem,  grants  the  privilege  to  the  merchants  of 
Marseilles  of  appointing  consuls  of  their  own  at  Acco  (St.  Jean 
d'Acre),  and  in  1263,  king  Jacob  of  Arragon  (Jayme  I.  1213- 

*  Comp.  Schomann,  Griech.  Alterth.  II.  22. 

f  Comp.  Hegel,  Gesch.  d.  Stadtere.'fass.  von  Italien  II.  205,  et  seq. 


§93  AGENTS    OF    INTERCOURSE,    ETC.  167 

1276),  gives  to  merchants  of  Barcelona  the  same  privilege  for 
parts  beyond  the  sea  under  his  sway.  A  charta  of  1328,  calls 
them  in  the  Proven9al  dialect  "  regens  dels  mercadiers  que  van 
per  mar."  *  Such  consuls  were  either  resident,  as  those  of  the 
large  trading  cities  of  the  Mediterranean,  or  temporary  during 
the  stay  abroad  of  merchants  setting  sail  in  a  vessel  together. 
From  a  statute  of  Marseilles  of  1253-55,  in  Pardessus  (Lois 
maritimes  IY.  256),  we  learn  that  the  appointment  of  consuls 
for  foreign  parts  was  there  instrusted  to  the  rector  of  the  town 
with  the  syndics  and  guardians  of  the  treasury ;  that  such  con 
suls,  under  advice  of  their  council,  had  the  power  of  imposing 
fines  and  of  banishing ; — subject  however  to  the  review  of  the 
home  government  on  complaint  of  the  aggrieved  person, — that 
if  no  consuls  should  have  been  appointed  for  any  place  where 
ten  or  more  Marseilles  merchants  were  residing,  these  of  them 
selves  might  make  choice  of  one,  until  the  office  could  be  filled ; 
that  the  consul  refusing  to  serve  was  finable ;  and  that  no  man 
enjoying  special  privileges  in  the  place,  and  no  one  but  a 
wholesale  dealer,  could  hold  the  office.  The  consul,  if  parties 
are  willing  to  submit  their  differences  to  him,  is  directed  to 
call  in  two  assistants.  The  fines  which  he  may  exact  from 
parties  whose  differences  he  has  settled  are  to  go,  half  to  him 
and  half  to  the  treasury  of  Marseilles.  Important  information 
in  regard  to  this  office  is  also  given  by  the  statutes  of  Ancona 
of  the  year  1397.  f 


The  functions  of  modern  consuls  are  determined  by  special 
treaties  and  by  the  laws  of  their  own  land.  Functionsanddu 
Among  their  usual  duties  in  Christian  lands,  be-  tied  of  conauls- 
sides  those  of  general  watchfulness  over  the  commercial  in 
terests  of  their  nation,  and  of.  aid  to  their  countrymen  in  secur 
ing  their  commercial  rights,  may  be  enumerated  the  duties — 

Of  legalizing  by  their  seal,  for  use  within  their  own  country, 
acts  of  judicial  or  other  functionaries,  and  of  authenticating 

*  Du  Cangp  voce  Consul.     Comp.  Leonhardi  in  Ersch  u.  Gruber's  Encyclop. 
voce  Consulat.  f  See  Pardessus,  u.  s.  V.  108,  116,  et  seq. 


168  THE    FORMS    AND    THE  §  96 

marriages,  births,  and  deaths,  among  their  countrymen,  within 
their  consulates ; 

Of  receiving  the  protests  of  masters  of  vessels,  of  granting 
passports,  and  of  acting  as  depositaries  of  sundry  ship's  papers ; 

Of  reclaiming  deserters  from  vessels,  providing  for  destitute 
sailors,  and  discharging  such  as  have  been  cruelly  treated ; 

Of  acting  on  behalf  of  the  owners  of  stranded  vessels,  and 
of  administering  on  the  personal  property  left  within  their 
consulates  by  deceased  persons,  where  no  legal  representative 
is  at  hand. 

Our  laws  require  masters  of  vessels,  on  entering  a  port  for 
traffic,  to  lodge  with  the  consul  their  registers,  sea-letters  and 
passports ;  and  make  it  a  consul's  duty  to  send  destitute  seamen 
home  at  the  public  expense. 

In  general,  throughout  Christian  lands,  the  principle  of  the 
control  of  the  laws  and  courts  over  foreigners 

Jurisdiction       of  .      ,  „  .  .    .,          , 

consuls  in  and  out  with  the  exemption  of  certain  privileged  persons. 

of  Christendom.       .      „  ..  ^  ,VV    j         -p,    ,          ™     .  A. 

is  tully  established.  .But  as  Christian  states  were 
reluctant  to  expose  their  subjects  to  the  operation  of  outland 
ish  law  and  judgments,  they  have  secured  extensively  by  treaty 
to  their  consuls,  in  Mohammedan  and  other  non-Christian  lands, 
the  function  of  judging  in  civil  and  even  in  criminal  cases, 
where  their  owTn  countrymen  are  concerned.  In  such  cases, 
according  to  the  laws  of  France,*  the  consul  is  assisted  by  two 
French  residents.  "  The  Frank  quarter  of  Smyrna  is  under 
the  jurisdiction  of  European  consuls,  and  all  matters  touching 
the  rights  of  foreign  residents  fall  under  the  exclusive  cogni 
zance  of  the  respective  consuls."  By  our  treaty  of  1834  with 
the  Sultan  of  Muscat,  our  consuls  there  are  exclusive  judges 
of  all  disputes  between  American  citizens,  and  by  our  treaty 
with  China  in  1844,  American  citizens  committing  crimes  in 
China,  are  subject  to  be  tried  and  punished  only  by  the  consul, 
or  other  public  functionary,  empowered  so  to  act  by  our  laws. 
Disputes,  also,  between  citizens  of  the  United  States,  or  be 
tween  them  and  other  foreign  residents,  are  not  to  be  tried  by 
the  laws  and  courts  of  China,  but  in  the  former  case  come 

*  Pardessus,  Droit  commercial,  VI.  294,  et  seq. 


§»6  AGENTS    OF    INTERCOURSE,    ETC.  169 

before  our  authorities,  and  in  the  other  are  to  be  regulated  by 
treaties  with  the  respective  governments  to  which  the  other 
parties  at  law  are  subject.  Similar  arrangements  have  recent 
ly  been  made  with  Japan.*  (§  65.) 

Consuls  on  exhibiting  proof  of  their  appointment  receive 
an  exequatur ',  or  permission  to  discharge  their  Privileges  and  sta- 
functions  within  the  limits  prescribed,  which  per-  tua  of  consuls- 
mission  can  be  withdrawn  for  any  misconduct.  They  have, 
during  their  term  of  office,  according  to  the  prevailing  opinion, 
no  special  privileges  beyond  other  foreigners,  and  are  thus 
subject  to  the  laws,  both  civil  and  criminal,  of  the  country 
where  they  reside.  They  enjoy  no  inviolability  of  person,  nor 
any  immunity  from  jurisdiction,  unless  it  be  given  to  them  by 
special  treaty.  Heffter,  however  (§  244),  makes  the  safe  state 
ment  that  they  possess  "  that  inviolability  of  person  which 
renders  it  possible  for  them  to  perform  their  consular  duties . 
without  personal  hindrance."  Yattel  (II.  2,  §  34)  goes  still 
farther.  A  sovereign,  says  he,  by  receiving  the  consul,  "  tacit 
ly  engages  to  allow  him  all  the  liberty  and  safety  necessary  in 
the  proper  discharge  of  his  functions."  His  functions  require 
that  he  be  "  independent  of  the  ordinary  criminal  justice  of 
the  place  where  he  resides,"  and  "  if  he  commit  any  crime,  he 
is,  from  the  respect  due  to  his  master,  to  be  sent  home."  But 
the  best  authorities  agree  that  it  is  at  the  option  of  a  sovereign, 
whether  the  consul  shall  have  the  benefit  of  such  comity  or 
not,f  and  it  seems  inconsistent  with  modern  ideas  of  the  terri 
torial  jurisdiction  of  the  sovereign,  that  a  man  who  is  very 
generally  a  merchant  should  be  exempt  from  the  law  which 
applies  to  people  of  his  class  about  him.  Chancellor  Kent 
cites  Warden,  as  producing  authorities  to  show  that  in  France 
"  a  consul  cannot  be  prosecuted  without  the  previous  consent 
of  his  government ;"  but  Foelix  sets  the  matter  in  the  follow 
ing  light :  \  that  by  a  convention  of  France  with  Spain  in  1769, 
the  consuls  of  the  latter,  being  Spanish  subjects,  obtained  im- 

*  Comp.  Kent,  I.  45,  Lect.  II. ;  Wheaton  El.  II.  2,  §  11. 

f  Comp.  among  others,  Bynkersh.  de  for.  leg.  10,  near  the  end. 

\  Foelk,  I.  406,  §  221 


170         THE    FORMS    AND    AGENTS    OF    INTERCOURSE,    ETC.          §  96 

munity  from  arrest,  excepting  for  atrocious  crime  and  for  com 
mercial  obligations.  This  covered  only  "  debts  and  other  civil 
cases  not  implying  crime  or  almost  crime,  and  not  growing 
out  of  their  mercantile  character."  Since  that  time  all  other 
nations,  with  whom  France  has  stipulated  that  their  consuls 
shall  be  placed  on  the  footing  of  the  most  favored  nation,  may 
claim  the  same  immunity,  "  but  with  this  exception,  consuls, 
being  foreign  subjects,  are  to  be  treated  in  France  like  all  other 
members  of  the  same  nation." 

Although  a  consul  has  none  of  the  privileges  of  an  ambas 
sador,  yet  an  insult  to  his  person,  or  an  attack  on  his  place  of 
official  business  involves  more  of  insult  to  his  country  than 
similar  treatment  of  an  ordinary  stranger  could  do.  He  has 
in  fact  something  of  a  representative  character,  and  calls  for 
the  protection  of  his  government  in  the  exercise  of  his  functions. 

Consuls  in  the  Mohammedan  countries,  owing,  perhaps,  to 
the  fact  that  formerly  diplomatic  intercourse  passed  to  some 
extent  through  their  hands,  and  to  their  official  character  of 
protectors  of  their  countrymen  in  those  lands,  have  nearly  the 
same  rights  as  ambassadors,  including  the  right  of  worship, 
and  in  a  degree  that  of  asylum. 

By  the  practice  of  some  nations,  only  a  native  can  be  em- 
mo  may  be  con-  pl°jed  to  attend  to  the  commercial  interests  of 
BUl8-  his  country  in  foreign  ports.  The  United  States, 

however,  have  hitherto  freely  employed  foreigners  in  that  ca 
pacity,  especially  in  ports  where  our  own  commerce  is  small. 


CHAPTER  Y. 

OF    THE   EIGHT   OP    CONTRACT    AND    ESPECIALLY    OF    TREATIES. 

§97. 

A  CONTEACT  is  one  of  the  highest  acts  of  human  free  will : 
it  is  the  will  binding  itself  in  regard  to  the  future,  of  contract,  e»- 

.  to    .     -  to  '    pecially   between 

and  surrendering  its  right  to  change  a  certain  ex-  states. 
pressed  intention,  so  that  it  becomes  morally  and  jurally  a 
wrong  to  act  otherwise ;  it  is  the  act  of  two  parties  in  which 
each  or  one  of  the  two  conveys  power  over  himself  to  the  other 
in  consideration  of  something  done  or  to  be  done  by  the  other. 
The  binding  force  of  contracts  is  to  be  deduced  from  the  free 
dom  and  foresight  of  man,  which  would  have  almost  no  sphere 
in  society,  or  power  of  co-operation,  unless  trust  could  be  ex 
cited.  Trust  lies  at  the  basis  of  society ;  society  is  essential  for 
the  development  of  the  individual ;  the  individual  could  not 
develop  his  free  forethought,  unless  an  acknowledged  obliga 
tion  made  him  sure  in  regard  to  the  actions  of  others.  That 
nations,  as  well  as  individuals,  are  bound  by  contract,  will  not 
be  doubted  when  we  remember  that  they  have  the  same  prop 
erties  of  free  will  and  forecast ;  that  they  could  have  no  safe 
intercourse  otherwise,  and  could  scarcely  be  sure  of  any  settled 
relations  toward  one  another  except  a  state  of  war,  and  that 
thus  a  state  of  society,  for  which  the  portions  of  the  world  are 
destined  would  be  impossible.  We  have  already  seen,  that 
without  this  power  a  positive  law  of  nations  could  not  exist, 
which  needs  for  its  establishment  the  consent  of  all  who  are 
bound  by  its  provisions.  National  contracts  are  even  more 
solemn  and  sacred  than  private  ones,  on  account  of  the  great 
interests  involved,  of  the  deliberateness  with  which  the  obliga- 


172  OF    THE    RIGHT    OF    CONTRACT  §98 

tions  are  assumed,  of  the  permanence  and  generality  of  the 
obligations, — measured  by  the  national  life,  and  including 
thousands  of  particular  cases, — and  of  each  nation's  calling, 
under  God,  to  be  a  teacher  of  right  to  all  within  and  without 
its  borders. 

Contracts  can  be  made  by  states  with  individuals  or  bodies 
with  whom  can  of  individuals,  or  with  other  states.     Contracts 

states  mako    cou-    .  ,  ,,     , 

tracts  ?  between  states  may  be  called  conventions  or  trea 

ties.  Among  the  species  of  treaties  those  which  put  an  end  to 
a  war  and  introduce  a  new  state  of  intercourse,  or  treaties  of 
peace,  will  be  considered  here,  only  so  far  as  they  partake  of 
the  general  character  of  treaties  :  their  relations  to  war  will  be 
considered  in  the  chapter  devoted  to  that  subject. 

§98. 

Treaties,  allowed  under  the  law  of  nations,  are  uncon- 
Lawfui  treaties,  strained  acts  of  independent  powers,  placing  them 
under  an  obligation  to,  do  something  which  is  not 
wrong,  or 

1.  Treaties  can  be  made  only  by  the  constituted  authorities 
of  nations,  or  by  persons  specially  deputed  by  them  for  that 
purpose.  An  unauthorized  agreement,  or  a  sponsio,  like  that 
of  the  consul  Postumius  at  the  Caudine  Forks,  does  not  bind 
the  sovereign, — if  is  held, — for  the  engager  had  no  power  to 
convey  rights  belonging  to  another.*  And  yet  it  may  be 
morally  wrong  for  the  sovereign  to  violate  such  an  engage 
ment  of  a  subordinate  ;  for  it  might  be  an  act  of  extreme  ne 
cessity,  to  which  the  usual  forms  of  governmental  proceedings 
would  not  apply.  Again,  from  the  nature  of  the  case  a  fac 
tion,  a  province,  or  an  integral  part  of  a  close  confederation 
has  no  treaty-making  power ;  although  a  loose  confederation, 
like  the  Germanic,  might  exist,  while  conceding  such  a  pre 
rogative  to  its  members.  Individuals,  or  other  dependent 
bodies,  can  make  commercial  arrangements  with  a  foreign 
power,  unless  their  laws  forbid ;  but  the  arrangements  apply  to 
a  particular  case,  and  obligate  none  else ;  they  are  like  any 
*  Comp.  Yattel,  Book  II.  §§  208-212. 


AND    ESPECIALLY    OF    TREATIES.  173 

other  private  contracts ;  nor  has  a  government  over  such  a  con 
tracting  party  anything  to  do  in  the  premises,  save  to  protect, 
and,  if  expedient,  to  procure  it  redress  against  injustice.  Poll- 
tical  engagements,  or  such  as  affect  a  body  politic,  can  be  made 
only  by  political  powers.  Only  the  actual  sovereign,  or  power 
possessing  the  attributes  of  sovereignty  at  the  time,  can  bind 
a  nation  by  its  engagements. 


2.  If  the  power  of  a  sovereign  or  of  a  government  is  limited 
by  a  ground-law,  written  or  unwritten,  a  treaty  Treaties  made  by 

.  ,     '  ,,  AM    A-  TVT  a  sovereign   with 

cannot  override  that  constitution.  .No  one  can  limited  powers. 
lawfully  exercise  power,  which  does  not,  of  right,  belong  to 
him.  Thus  under  constitutional  forms,  where  the  treaty-mak 
ing  power  is  placed  in  particular  hands,  no  others  can  exercise 
it,  and  where  it  is  limited  in  extent,  it  cannot  be  lawfully  ex 
ercised  beyond  that  limitation.  Where,  however,  an  unlimited 
power  of  making  treaties  is  given  to  a  government,  or  to  some 
department  of  it,  the  public  domain  and  property  may  be 
alienated,  or  individual  rights  may  be  sacrificed  for  public  pur 
poses.*  And  yet  even  the  most  absolute  despot  may  make 
treaties,  which  neither  his  subjects  nor  third  powers  ought  to 
regard  as  binding.  Could  the  house  of  Eomanoff,  for  instance, 
resign  the  throne  of  Russia  to  whom  it  pleased  ?  The  true 
view  here  is,  that  the  province  of  absolutism  is  not  to  dispose 
of  the  national  life,  but  to  maintain  it  without  those  checks  on 
the  exercise  of  power  which  exist  elsewhere.  No  power,  how 
ever  uncontrolled,  was  given  to  destroy  a  nation,  or  can  law 
fully  do  so. 

An  interesting  inquiry  here  arises,  whether  the  treaty-mak 
ing  power  in  a  federative  union,  like  the  United  States,  can 
alienate  the  domain  of  one  of  the  States  without  its  consent. 
Our  government,  when  the  northeastern  boundary  was  in  dis 
pute,  declared  that  it  had  no  power  to  dispose  of  territory 
claimed  by  the  State  of  Maine.  "  The  better  opinion  would 
seem  to  be,"  says  Chancellor  Kent,  "  that  such  a  power  of  ces- 

*  Kent,  I.  166,  167. 


174  OF    THE    RIGHT    OF    CONTRACT  §  100 

eion  does  reside  exclusively  in  the  treaty-making  power  under 
the  Constitution  of  the  United  States,  although  a  sound  dis 
cretion  would  forbid  the  exercise  of  it  without  the  consent "  of 
the  interested  state.  But  it  might  be  asked,  whether  the  treaty- 
making  power  is  not  necessarily  limited  by  the  existence  of 
states,  parties  to  the  confederation,  having  control  for  most 
purposes  over  their  own  territory.  Could  the  treaty-making 
power  blot  out  the  existence  of  a  state  which  helped  to  create 
the  union,  by  ceding  away  all  its  domain  ?  Such  fearful  power 
was  never  lodged  in  the  general  government  by  the  Constitu 
tion  and  could  never  be  lawfully  exercised  in  the  ordinary  con 
tingencies  of  the  confederation.  Only  in  extreme  cases,  where 
the  treaty-making  power  is  called  upon  to  accept  the  fact  of 
conquest,  or  to  save  the  whole  body  from  ruin  by  surrendering 
a  part,  could  such  an  exercise  of  power  be  justified.  (Comp. 
§§  52,  153.) 

§100. 

3.  A  treaty,  in  which  the  treaty-making  power  flagitiously 
Treaties  obtained  sacrifices  the  interests  of  the  nation  which  it  re- 
bfndSgmonana8  "a-  presents,  has  no  binding  force.     In  this  case  the 

treacherous  act  of  the  government  cannot  be  just 
ly  regarded  as  the  act  of  the  nation,  and  the  forms  ought  to 
give  way  to  the  realities  of  things.  Moreover,  the  other  party 
to  the  treaty  ought  not  to  draw  advantage  from  the  iniquity 
of  an  agent  whom  it  has  itself  tempted.  What,  for  example, 
was  the  cession  worth,  which  the  king  of  Spain  made  of  his 
rights  to  the  crown  to  Bonaparte  in  1807,  and  who  could  think 
himself  bound  by  such  an  act,  even  if  it  lay  within  the  compe 
tence  of  the  sovereign  ? 

4.  Treaties  obtained  by  false  representations,  or  by/orce, 
Nor  those  obtain-  are  not  binding.     The  rule  for  nations  here  is  the 

ed  by  false  state-  .  .         .   °         .  .  . 

merits  or  by  force,  same  which  in  all  law  holds  good  tor  individuals. 
In  the  former  case,  the  consideration  which  led  to  the  making 
of  the  treaty  did  not  exist,  but  a  false  statement  was  purposely 
made  in  order  to  bring  about  the  contract.  In  the  latter  case, 
the  engagement  was  not  the  free  act  of  an  independent  will. 
But  this  rule  will  not  invalidate  a  treaty,  where  one  of  the 


§  100  AND    ESPECIALLY    OF    TREATIES.  175 

parties  acts  under  a  wrong  judgment,  or  has  a  false  impression, 
for  which  the  other  is  not  responsible.  For  the  consideration 
is  not  real  objective  good,  but  the  expectation  of  good,  which 
may  not  be  realized.  Having,  under  the  sway  of  this  expecta 
tion,  influenced  the  conduct  of  the  other  party,  he  has  brought 
himself  under  obligation.  Thus,  if  a  garrison  capitulates  un 
der  a  mistake  as  to  the  force  of  the  besieging  army  or  the  pro 
bability  of  relief,  and  discovers  the  mistake  before  the  capitu 
lation  takes  effect,  this  is  still  binding.  Again,  when  we  speak 
of  force  invalidating  a  treaty,  we  must  intend  unjust  duress  or 
violence  practised  on  the  sovereign  or  the  treaty-making  agent. 
A  disadvantageous  treaty  made  to  prevent  further  conquest,  or 
to  release  the  sovereign  or  others  from  lawful  captivity,  is  as 
binding  as  any  other ;  for  a  fair  advantage  of  war  has  been 
used  to  obtain  terms  which  otherwise  would  not  have  been  con 
ceded.  Thus  when  Pope  Paschal  II.  was  taken  prisoner  in 
1111,  by  the  Emperor  Henry  V.,  or  John  of  Prance,  in  1356, 
by  Edward  III.  of  England  at  Poitiers,  or  Francis  I.  in  1525, 
at  Pavia,  by  the  officers  of  Charles  Y.,  the  treaties  made  to 
procure  their  liberty  were  respectively  binding,  so  far  as  no 
thing  immoral  was  involved  in  their  articles,  or  the  persons 
making  the  treaties  did  not  transcend  their  powers.  In  the 
case  of  Paschal,  the  feeling  of  the  age,  or  at  least  of  the  stricter 
party  in  the  church,  regarded  the  practice  of  lay  investitures, 
to  which  he  gave  his  consent,  as  something  irreligious ;  and  it 
was  claimed  that  he  was  under  compulsion  when  he  performed 
the  act.  But  why,  if  he  renounced  his  engagement  as  constrain 
ed  and  unlawful,  did  he  not  return  to  his  imprisonment  ?  John, 
with  true  feudal  honor,  when  a  prince  of  his  blood  violated  his 
stipulation,  put  himself  again  into  the  hands  of  the  English 
king  ;  while  Francis,  unlike  his  ancestor,  and  unlike  St.  Louis, 
who  kept  his  faith  with  the  Saracens,  given  almost  in  fear  of 
death,  neither  stood  to  his  engagements,  nor  went  back  into 
captivity  at  Madrid.  In  the  case  of  Francis,  it  may  be  doubt 
ed  whether  the  estates  of  Burgundy  could  be  transferred  with 
out  their  consent  to  another  sovereign :  feudal  law,  not  then 
extinct,  would  not  give  such  power  into  the  hands  of  the  suze- 


176  OF    THE    RIGHT    OF    CONTRACT  §  101 

rain  without  the  vassal's  concurrence.  But  why  did  he  make 
a  treaty  if  not  free,  and  why,  if  not  able  to  execute  it,  did  he 
not  restore  all  things,  as  far  as  in  him  lay,  to  their  condition 
anterior  to  the  treaty  ?  * 

§101. 

5.  A  treaty  can  never  obligate  to  do  an  unlawful  act,  for 
Treaties  to  do  an  neither  party  can  give  consent  to  do  evil  in  ex- 

unlawful  act   not  .  „  ,          ,  mi 

binding.  pectation  oi  a  good  to  be  received,    inus  a  treaty 

contradicting  a  prior  treaty  with  another  power  is  void,  and  if 
observed,  an  act  of  injustice.  Thus,  too,  a  combination  to  com 
mit  injustice,  for  example,  to  put  down  liberty  or  religion,  or 
to  conquer  and  appropriate  an  independent  country,  as  Poland, 
is  a  crime  which  no  formalities  of  treaty  can  sanction.  This 
rule,  it  is  true,  is  not  one  of  much  practical  application  to  the 
concerns  of  nations,  for  ~beforehand,  most  of  the  iniquities  of 
nations  are  varnished  over  by  some  justifying  plea,  and  the 
only  tribunal  in  the  case  is  the  moral  indignation  of  mankind, 
while,  after  the  crime  has  triumphed,  mankind  accept  the  new 
order  of  things,  rather  than  have  a  state  of  perpetual  war.  But 
the  rule  is  useful,  so  far  as  it  sanctions  the  protests  of  innocent 
states,  and  their  combinations  to  resist  the  power  and  danger 
of  combined  injustice. 

§102. 

Treaties  are  of  various  kinds.     They  may  define  private 

relations,  like  commercial  treaties,  or  political  re- 
Kind  of  treaties.         .  _  .     1 
lations.     Iney  may  be  temporary,  or  oi  unlimited 

duration,  and  among  the  latter,  some,  or  some  provisions  which 
they  contain,  may  be  dissolved  by  war,  and  others,  intended  to 
regulate  intercourse  during  war,  may  be  perpetual.  They  may 
secure  co-operation  merely,  as  treaties  of  alliance,  or  a  closer 
union,  as  confederations,  or  the  uniting  of  two  or  more  states 
into  one.  All  the  intercourse  of  nations  may  come  under  the 
operation  of  treaties  ;  and  they  may  reach  to  the  explanation 
or  alteration — as  far  as  the  parties  are  concerned — of  interna- 

*  Comp.  Flassan,  Diplom.  Franyaise,  I.  3-23,  seq.,  and  Ward's  Hist.  II.  361. 


§  103  AND    ESPECIALLY    OF    TREATIES.  177 

tional  law.     Hence  the  importance  of  collections  of  treaties, 
and  of  the  history  of  diplomatic  intercourse. 

Besides  these  leading  divisions,  treaties  may  differ  from 
one  another  in  many  ways.  They  may,  for  instance,  be  niade 
by  the  treaty-making  powers  in  person  or  by  their  agents,  may 
be  open  or  secret  or  with  articles  of  both  kinds,  may  be  abso 
lute  or  conditioned,  may  contain  promises  of  performance  on 
one  or  on  both  sides,  may  be  attended  or  not  with  a  pecuniary 
payment,  be  revocable  at  the  will  of  either  party  or  irrevo 
cable.  They  may  be  principal  or  accessory,  preliminary  or 
definitive.  They  may  be  simple,  consisting  of  one  engage 
ment,  or  contain  many  articles,  some  leading,  others  subordi 
nate.  They  may  contain  new  provisions,  or  confirm  or  explain 
old  treaties.  Thus  some  of  the  more  important  treaties,  as 
those  of  "Westphalia  and  Utrecht,  have  been  confirmed  many 
times  over.* 

§103. 

Treaties  of  alliance  may  be  defensive  or  offensive,  or  both.. 
Defensive  treaties,  as  generally  understood,  are  Treatie8  a  ofal,. 
made  to  secure  the  parties  to  them  against  aggres-  liimce- 
sion  from  other  states.  They  may,  also,  aim  at  the  mainten 
ance  of  internal  quiet,  or  of  neutrality  amid:  the  conflicts  of 
neighboring  powers.  To  attempt  to  gain  any  of  these  objects 
is  not  necessarily  contrary  to  the  law  of  nations  or  to  natural 
justice.  Mutual  aid,  indeed,  against  the  disturbers  of  internal 
quiet,  may  secure  an  absolute  government  against  popular 
revolutions  in  favor  of  liberty  (§  41),  but  if  a  confederation  or 
alliance  Hiay  secure  to  its  members  the  enjoyment  of  free  insti 
tutions,  there  is  no  reason,  as  far  as  international  law  is  con 
cerned,  why  institutions  of  an  opposite  kind  may  not  support 
themselves  in  the  same  way.  The  law  of  nations,  we  have 
seen,  shows  no  preference  for  any  one  kind  of  government,  but 
acknowledges  all  established  governments  as  having  a  right  to 
exist.  Treaties  of  neutrality  are  reciprocal  engagements  to 
have  no  part  in  the  conflicts  between  other  powers, — to  remain 

*  Comp.  Kliiber,  §§  146,  147. 
12 


178  OF    THE    RIGHT    OF    CONTRACT  §  103 

at  peace  in  an  apprehended  or  an  actual  war.  They  are  sug 
gested  by,  and  prevent  the  evils  of  that  interference  of  nations 
in  each  other's  affairs,  for  the  preservation  of  the  balance  of 
power  or  the  safety  of  the  parties  interfering,  which  is  so  com 
mon  in  modern  history.  Alliances  at  once  offensive  and  defen 
sive  have  one  of  the  usual  and  more  important  characteristics 
of  confederations. 

Sometimes  a  treaty-engagement  is  made  to  do  a  certain 
specific  act  of  limited  extent  in  contemplation  of  a  possible 
future  state  of  war,  as  to  supply  a  certain  amount  of  money  or 
number  of  troops.  The  party  entering  into  such  a  stipulation, 
if  the  agreement  was  general,  and  had  no  special  reference  to 
a  particular  war  with  a  particular  nation,  is  held  not  to  have 
taken  a  belligerent  attitude.*  Much,  however,  would  depend 
upon  the  amount  of  assistance  promised,  and  it  stands  open  to 
the  party  injured  by  such  aid  afforded  to  his  rival,  to  regard  it 
as  an  act  of  hostility  or  not,  as  he  may  think  best. 

A  treaty  of  alliance  can  bind  the  parties  to  no  injustice 
(§  101),  nor  justify  either  of  them  in  being  accessory  to  an  act  of 
bad  faith  on  the  part  of  another.  Hence  a  defensive,  still  more 
an  offensive  alliance,  can  only  contemplate,  if  lawful,  the  ward 
ing  off  of  intended  injustice.  Where  justice  is  doubtful,  the 
benefit  of  the  doubt,  it  is  held,  ought  to  accrue  to  the  ally.  It  is 
held,  also,  that  in  cases  where  compliance  is  plainly  useless,  or 
would  be  ruinous,  an  ally  is  not  obliged  to  aid  his  friend. 
With  regard  to  defensive  alliances,  the  question  may  arise, 
what  constitutes  a  defensive  war,  since  certain  wars  have  been 
defensive  in  spirit,  though  offensive  in  form.  The  best  answer 
seems  to  be,  that  clearly  menaced  injustice  may  be  prevented 
by  an  ally ; — that  he  ought  not  to  wait  until  the  formality  of 
striking  the  blow  arrives,  but  fulfil  his  obligation  by  giving 
aid,  as  soon  as  it  is  needed.f  Thus  a  defensive  alliance  scarcely 
differs  from  a  justifiable  offensive  one. 

*  Vattel,  III.  §  97  ;  Wheaton's  El.  III.  2.  §  14. 
f  Comp.  Wheaton,  El.  u.  s.  III.  2.  §  13. 


g  105  AND   ESPECIALLY    OF   TREATIES.  179 

§104. 

A  confederation  is  a  union,  more  or  less  complete,  of  two 
or  more  states  which  before  wrere  independent.  2  of  confedera. 
It  aims  to  secure  a  common  good,  external,  as  tion> 
mutual  protection  against  powerful  neighbors,  or  internal,  as 
commerce  and  community  of  justice  by  means  of  common 
institutions.  If,  by  the  terms  of  the  league,  the  parts  are  so 
far  united  together  as  to  act  through  one  organ  in  all  external 
relations,  and  if  this  organ  has  many  of  the  properties  of  sov 
ereignty  in  internal  affairs,  the  resulting  government  is  not  a 
league  of  states  (a  Staatenbund,  as  the  Germans  call  it),  but  a 
state  formed  by  a  league.  (Bundesstaat.)  But  the  two  have 
no  exact  limits  to  separate  them. 

States  have,  as  far  as  others  are  concerned,  an  entire  right 
to  form  such  leagues,  or  even  to  merge  their  existence  in  a  new 
state,  provided,  however,  that  no  obligation  toward  a  third 
power  is  thereby  evaded,  and  no  blow  is  aimed  at  its  safety. 
When  so  constituted,  a  union  must  be  respected  by  other 
powers,  who  are  henceforth  to  accommodate  their  diplomatic 
and  commercial  intercourse  to  the  new  order  of  things.  If  an$ 

O  €/ 

of  the  members  came  into  the  union  with  debts  on  their  heads, 
the  obligation  to  pay  them  is  not  cancelled  by  the  transaction ; 
or  if  in  any  other  way  owing  to  the  new  state  of  things  for 
eign  states  are  wronged,  compensation  is  due.  In  the  opposite 
case,  when  a  league  or  union  is  dissolved,  the  debts  still  re 
main,  justice  requiring  not  only  that  they  be  divided  between 
the  members  in  a  certain  ratio,  but  also  that  each  of  the  mem 
bers  be  in  some  degree  holden  to  make  good  the  deficiencies 
of  the  others.  Comp.  §  38. 

§105. 

Treaties  of  guaranty*  are  to  be  classed  among  treaties  as  it 
respects  their  form,  and  as  it  respects  their  objects 
among  the  means-  of  securing  the  observance  of  anty,  *m?gufn£ 

,  •  nm  .    11  ties  of  treaties. 

treaties.     Iney  are   especially  accessory  stipula 
tions,  sometimes  incorporated  in   the  main   instrument,  and 

*  Comp.  Vattel,  II.  16,  §  235,  seq. ;  Kliiber,  §§  157-159  ;  Heflfter,  §  9Y ;  Whea* 
ton's  El.  III.  2,  §  12. 


180  OF    THE    RIGHT    OF    CONTRACT.  §  105 

sometimes  appended  to  it,  in  which  a  third  power  promises  to 
give  aid  to  one  of  the  treaty-making  powers,  in  case  certain 
specific  rights, — all  or  a  part  of  those  conveyed  to  him  in  the 
instrument, — are  violated  by  the  other  party.  We  say  certain 
specific  rights,  because  an  engagement  to  afford  assistance 
against  the  violation  of  all  rights,  would  be,  as  Kliiber  remarks, 
a  league  or  treaty  of  alliance.  A  guaranty  may  refer  to  any 
rights  whatever,  for  instance  to  the  payment  of  a  sum  of  money 
stipulated  in  a  treaty,  as  when  Russia,  in  1776,  guaranteed  a 
Polish  loan  of  500,000  ducats ;  to  the  secure  possession  of  ceded 
territory ;  to  the  integrity  of  a  state,  as  the  French  emperor 
guaranteed  the  integrity  of  the  Austrian  states  in  the  peace  of 
Yienna,  of  1809 ;  to  the  right  of  succession,  as  the  famous 
pragmatic  sanction  of  the  Emperor  Charles  YI.  (Append.  II. 
1735)  was  guaranteed  by  Spain,  France,  the  empire,  etc.,  and 
the  succession  of  the  Bourbons  in  Spain  by  Austria,  in  the 
treaty  of  Yienna,  1735,  (Append.  II.) ;  to  religious  franchises, 
as  in  the  guaranties  of  the  treaties  of  Westphalia ;  to  the  main 
tenance  of  an  existing  constitution,  which  might  imply  help 
%ainst  revolted  subjects ;  to  national  independence,  as  when 
in  the  Paris  peace  of  1856,  England  and  France  pledged  them 
selves  to  sustain  the  national  existence  and  integrity  of  Turkey, 
— to  any  or  to  all  of  these.  Guaranties  often  extend  to  all  the 
provisions  of  a  treaty ;  and  thus  approach  to  the  class  of  defen 
sive  alliances. 

Guaranties  may  be  given  to  each  other  by  all  the  parties  to 
a  treaty,  where  there  are  more  than  two,  or  by  certain  parties 
to  certain  others,  or  by  a  third  power  to  secuss  one  of  the  prin 
cipals  in  the  transactions.  At  the  peace  of  Aix-la-Chapelle,  in 
1748,  the  eight  contracting  powers  gave  mutual  guaranties. 
At  the  peace  of  Westphalia,  and  that  of  Paris,  in  1763,  all  the 
powers  concerned  did  the  same.  Sometimes  a  treaty  renews 
or  confirms  previous  ones,  and  the  question  may  arise  whether 
a  general  guaranty  to  such  a  treaty  is  also  a  guaranty  to  all 
past  treaties  which  it  includes.  Thus,  the  treaty  of  Teschen* 
(1779,  Append^  II.),  which  was  guaranteed  by  Russia,  renewed 

*  Comp.  de  Martens,  §  338. 


§  105  AND    ESPECIALLY    OF    TREATIES.  181 

the  treaties  of  "Westphalia.  Did  then  Kussia  become  a  guar 
antee  to  that  peace  ?  Certainly  not  in  the  same  sense  in  which 
France  and  Sweden  became  such,  when  it  was  made  (Append. 
II,  1648),  and  at  most,  only  so  far  as  the  relations  between 
those  powers  were  concerned  who  were  parties  to  the  principal 
treaty. 

The  political  importance  of  general  guaranties  is  none 
other  than  that  of  alliances  framed  in  view  of  existing  affairs. 
They  are  a  mode  of  providing  beforehand  against  infractions 
of  rights  by  securing  the  pledge  of  a  third  party,  and  a  con 
venient  way  of  intervening  in  the  affairs  of  other  states,  and 
of  keeping  up  the  present  order  of  things.  Whether  they  are 
justifiable  in  such  cases  depends  nol;  on  the  form  which  they 
take,  but  on  the  propriety  of  intervention.  (Comp.  §  42,  note.) 

A  guaranty  requires  the  party  making  it,  to  give  aid  when 
called  upon,  and  so  much  aid  as  he  had  stipulated,  and  in  a 
case  to  which,  in  his  judgment,  the  guaranty  relates.  If  the 
party,  on  whose  account  he  became  a  security,  declines  his 
assistance,  he  has  nothing  to  do  with  the  case  further,  unless, 
indeed,  grounds  of  public  interest,  apart  from  his  obligation, 
make  his  intervention  of  importance.  If  the  parties  to  a  treaty 
alter  it  or  add  to  it,  he,  of  course,  is  not  bound  by  his  guaranty 
in  regard  to  these  new  portions  of  the  treaty :  if  the  alterations 
are  essential,  it  may  be  doubted  whether  his  guaranty,  made, 
perhaps,  in  view  of  another  state  of  things,  has  not  ceased  to 
be  obligatory.  If  by  the  assistance  promised,  he  cannot  make 
good  the  injury,  he  is  bound  to  nothing  more,  much  less  to 
compensation.  If  he  guarantees  a  debt,  and  the  payment  is 
refused,  he  is  not  bound  to  make  it  good ;  for  in  this,  according 
to  Vattel,*  lies  the  difference  between  a  surety  and  a  guar 
antee,  that  the  former  is  obliged  to  perform  what  the  principal 
party  has  failed  to  do,  while  the  latter  is  only  bound  to  do  his 
best  to  bring  the  other  to  a  compliance  with  his  engagement. 

Treaties  of  guaranty,  when  they  pledge  a  stronger  power 
to  maintain  the  independence  and  integrity  of  a  Origin  of  £ruaran 
weaker,  do  not  differ  greatly  from  those  treaties  tieeto  treaties- 

*  Vattel,  II.  16,  §  240.     Comp.  Wtteaton,  u.  s. 


182  OF*  THE    RIGHT    OF    CONTRACT  §106* 

of  protection  which  were  not  unknown  to  the  middle  ages. 
Of  such  a  description  was  the  treaty  between  John  of  England 
and  the  king  of  the  Isle  of  Man  in  1205,  which  Mr.  "Ward 
notices  in  his  history  (II.  159),  and  which  soon  afterward  (in 
1212)  was  changed  into  a  treaty,  whereby  the  king  of  England 
became  the  suzerain  of  the  other.  Guaranties  in  their  modern 
form  do  not  seem  to  have  been  in  use  much  before  the  date  of 
the  treaties  of  Westphalia.  Before  this  time  persons  called 
conservators  were  sometimes  appointed  to  watch  over  the  exe 
cution  of  treaties,  who  might  be  ministers  or  governors  of  pro 
vinces  with  power  to  adjust  difficulties  between  the  parties ; 
and  even  private  persons  added  their  seals  to  that  of  their 
sovereign,  and  were  bound  to  declare  against  him,  if  he  broke 
his  word.  At  the  treaty  of  Senlis,  in  '1493,  between  Charles 
VIII.  of  France  and  the  Emperor  Maximilian,  not  only  indivi 
dual  subjects  but  a  number  of  towns  attached  their  seals  on 
behalf  of  their  respective  sovereigns.  The  Sieur  de  Bevres, 
one  of  the  sealers,  declares  under  his  name  that,  if  the  Emperor 
and  his  son,  Archduke  Philip  the  Fair,  should  not  observe 
their  agreement,  he  would  be  bound  to  abandon  them,  and  give 
favor  and  assistance  to  the  king  of  France.  First  in  1505  the 
treaty  of  Blois  mentions  foreign  princes  as  its  conservators. 
They  add  their  confirmation  also  to  a  peace  made  at  Cambray 
seven  years  later.  From  this  to  modern  guaranties  the  step 
was  an  easy  one.* 

§106. 

Various  other  ways   of  securing  the  parties  to  a  treaty 
against  each  other's  want  of  good  faith  have  been 

Other    modes    of       °  ° 

confirming     the  taken,  some  of  which  are  obsolete  while  others  are 

faith  of  treaties.  .,,   .  , 

still  in  use.  One  way  was  to  add  to  the  solemnity 
of  the  oath  which  confirmed  the  treaty,  by  taking  it  over  the 
bones  of  saints,  the  gospels,  the  wood  of  the  true  cross,  the  host 
and  the  like.  Another  kind  of  religious  sanction  is  found  in 

*  See  Mably.  I.  Part  II.  129-131,  Amsterdam  edit,  of  1777,  and  Flassan,  Hist,  de 
la  Diplom.  Franyaise,  I.  244,  in  his  remarks  on  a  treaty  between  Louis  XI.  and  the 
Emperor  in  1482. 


§  106  AND    ESPECIALLY    OF    TREATIES.  183 

the  treaty  of  Cambray  (the  "  paix  des  dames,"  Append.  II)  of 
Aug.  5,  1529,  in  which  the  parties  submitted  themselves  to  the 
jurisdiction  and  censures  of  the  church,  even  .to  the  point  of 
suffering  the  secular  arm  to  be  called  in  to  support  the  ecclesi 
astical  ;  and  appointed  procurators  to  appear  at  Rome  on  their 
behalf  and  undergo  the  condemnation  and  fulmination  of  such 
censures,*  etc. 

Another  mode  of  securing  the  faith  of  treaties,  formerly 
much  in  use  but  now  almost  obsolete,  was  that  of 
giving  hostages,  one  of  the  last  examples  of  which 
occurred  after  the  peace  of  Aix-la-Chapelle  in  1748,  when  two 
British  peers  (Lords  Sussex  and  Cathcart)  remained  on  parole 
at  Paris  until  Cape  Breton  should  be  restored  to  France.  The 
understanding  in  giving  hostages  was  that  their  freedom  and 
not  their  lives  secured  the  treaty :  hence,  when  it  was  viola 
ted,  they  might  be  detained  in  captivity,  but  not  put  to  death. 
Escape  on  their  part  would  be  gross  treachery.  On  the  fulfil 
ment  of  the  obligation  they  were  of  course  free.  The  mode  of 
treating  them  within  the  laws  of  humanity,  as  whether  they 
should  be  confined,  according  to  early  practice,  or  be  allowed 
to  go  about  on  parole,  would  depend  on  the  pleasure  of  the 
party  secured  by  them.  It  is  asked  whether  a  prince  serving 
as  a  hostage  could  be  detained,  if  he  should  inherit  the  crown 
during  his  captivity.  Without  doubt  he  might  in  the  times 
when  hostages  were  commonly  given,  because  even  sovereigns 
were  then  so  detained.  And  if  the  practice  prevailed  now,  it 
might  be  doubted  whether  the  principle  o*f  exterritoriality 
would  not  have  to  be  sacrificed  in  such  a  ease.f 

Treaties  are  also  still  confirmed  by  pledges,  which  generally 
consist  in  territories  or  fortresses  put  into  the 
hands  of  the  other  party,  who  more  rarely  con 
tents  himself  with   simple  hypothecation   without  transfer. ;[: 

*  Comp.  Mably,  u.  s.  The  provision  is  found  in  Art.  XLYI.  of  the  treaty 
(Dumont,  IV.  2,  15),  and  is  a  striking  proof  of  the  small  trust  which  the  parties  put 
in  one  another.  They  show  in  the  same  place  a  dread  that  the  Pope  might  absolve 
one  or  the  other  (as  he  had  already  done  in  the  case  of  Francis)  from  his  oath  and 
faith,  and  endeavor  to  guard  against  it. 

\  Comp.  Vattel,  II.  Chap.  16,  §§  245-261,  and  Ward's  Hist.  I.  172-175. 

J  Comp.  Kluber,  §  156. 


184:  OF    THE    RIGHT    OF    CONTRACT  §  1C7 

The  occupation  of  the  French  fortresses  by  the  allies,  accord 
ing  to  the  terms  of  the  second  treaty  of  Paris,  may  be  regarded 
as  coming  under  this  head,  since  it  secured  the  payment  of  the 
indemnities,  (Append.  II.  1815,)  although  it  was  equally 
intended  to  secure  the  Bourbon  dynasty. 

§107. 

Treaties   are  binding,  unless  some  other  time  is  agreed 
upon,  at  the  time  when  they  are  signed  by  an 

At  what  time  do       r       '   .       j-  ,      ,      .  .„         .°  •_      . 

treaties  begin  to  authorized  agent,  and  their  ratification  by  their 

be  binding? 

sovereign  is  retroactive. 

If,  then,  an  ambassador,  in  conformity  with  a  full  power 
received  from  his  sovereign,  has  negotiated  and  signed  a  treaty, 
is  the  sovereign  justified  in  withholding  his  ratification  ?  This 
question  has  no  significance  in  regard  to  states,  by  whose  form 
of  government  the  engagements  made  by  the  executive  with 
foreign  powers  need  some  further  sanction.  In  other  cases, 
that  is  wherever  the  treaty-making  power  of  the  sovereign  is 
final,  the  older  writers  held  that  he  was  bound  by  the  acts  of  his 
agent,  if  the  latter  acted  within  the  full  power  which  he  had 
received,  even  though  he  had  gone  contrary  to  secret  instruc 
tions.  But  Bynkershoek  defended  another  opinion  which  is 
now  the  received  one  among  the  text-writers,  and  which 
Wheaton  has  advocated  at  large  with  great  ability.*  If  the 
minister  has  conformed  at  once  to  his  ostensible  powers  and  to 
his  secret  instructions,  there  is  no  doubt  that  in  ordinary  cases 
it  would  be  bad'faith  in  the  sovereign  not  to  add  his  ratifica 
tion.  But  if  the  minister  disobeys  or  transcends  his  instruc 
tions,  the  sovereign  may  refuse  his  sanction  to  the  treaty  with 
out  bad  faith  or  ground  of  complaint  on  the  other  side.  But 
even  this  violation  of  secret  instructions  would  be  no  valid 
excuse  for  the  sovereign's  refusing  to  accept  the  treaty,  if  he 
should  have  given  public  credentials  of  a  minute  and  specific 
character  to  his  agent ;  for  the  evident  intention  in  so  doing 
would  be  to  convey  an  impression  to  the  other  party,  that  he 

*  Wheaton's  EL  B.  III.  2,  §  5 ;  Bynkershoek,  Quaest.  J.  P.  II.  7 ;  de  Martens, 


§109  AND    ESPECIALLY    OF    TREATIES.  185 

is  making  a  sincere  declaration  of  the  terms  on  which  he  is 
willing  to  treat. 

But  even  when  the  negotiator  has  followed  his  private 
instructions,  there  are  cases,  according  to  Dr.  Wheaton,  where 
the  sovereign  may  refuse  his  ratification.  He  may  do  so  when 
the  motive  for  making  the  treaty  was  an  error  in  regard  to  a 
matter  of  fact,  or  when  the  treaty  would  involve  an  injury  to 
a  third  party,  or  when  there  is  a  physical  impossibility  of  ful 
filling  it,  or  when  such  a  change  of  circumstances  takes  place  as 
would  make  the  treaty  void  after  ratification. 

All  question  would  be  removed,  if  in  the  full  power  of  the 
negotiators  or  in  a  clause  of  the  treaty  itself,  it  were  declared 
that  the  sovereign  reserved  to  himself  the  power  of  giving 
validity  to  the  treaty  by  ratification.  This,  if  we  are  not 
deceived,  is  now  very  generally  the  case. 

§'l08. 

Treaties,  like  other  contracts,  are  violated,  when  one  party 
neglects  or  refuses  to  do  that  which  moved  the  violation  of  trea- 
other  party  to  engage  in  the  transaction.  It  is  tie8- 
not  every  petty  failure  or  delay  to  fulfil  a  treaty,  which  can 
authorize  the  other  party  to  regard  it  as  broken, — above  all,  if 
the  intention  to  observe  it  remains.  When  a  treaty  is  violated 
by  one  party,  the  other  can  regard  it  as  broken,  and  demand 
redress,  or  can  still  require  its  observance. 

§  109. 

The  laws  of  interpretation  in  the  case  of  treaties  are  sub 
stantially  the  same  as  in  the  case  of  other  con-  Interpretation  of 
tracts.     Some  writers,  as  Grotius  and  Yattel,  go  treatie8- 
at  large   into  this  subject.*      The   following   are  among  the 
most  important  of  those  laws : 

1.  The  ordinary  usus  loquendi  obtains,  unless  it  involves  an 
absurdity.     "When  words  of  art  are  used,  the  special  meaning 
which  they  have  in  the  given  art  is  to  determine  their  sense. 

2.  If  two  meanings  are  admissible,  that  is  to  be  preferred 
which  is  least  for  the  advantage  of  the  party  for  whose  benefit 
a  clause  is  inserted.     For  in  securing  a  benefit  he  ought  to  ex- 

*  Grotius,  II.  16;  Vattel,  II.  Chap.  17.     Comp.  Wildman,  Vol.  I.  176-185. 


186  OF   THE    RIGHT    OF    CONTRACT,    ETC.  §109 

press  himself  clearly.  The  sense  which  the  accepter  of  condi 
tions  attaches  to  them  ought  rather  to  be  followed  than  that  of 
the  offerer. 

3.  An  interpretation  is  to  be  rejected,  which  involves  an 
absurdity,  or  renders  the  transaction  of  no  effect,  or  makes  its 
parts  inconsistent. 

4.  Obscure  expressions  are  explained  by  others  more  clear 
in  the  same  instrument.     To  discover  the  meaning,  the  con 
nection  and  the  reasons  for  an  act  must  be  considered. 

5.  Odious  clauses,  such  as  involve  cruelty  or  hard  condi 
tions  for  one  party,  are  to  be  understood  strictly,  so  that  their 
operation  shall  be  brought  within  the  narrowest  limits ;  while 
clauses  which  favor  justice,  equity,  and  humanity,  are  to  be 
interpreted  broadly. 

Sometimes  clauses  in  the  same  treaty,  or  treaties  between 
the  same  parties  are  repugnant.    Some  of  the  rules 

Repugnant  clnus-    ,  TIT 

es  and  conflicting  nere  applicable  are 

treaties 

1.  That  earlier  clauses  are  to  be  explained  by 
later  ones,  which  were  added,  it  is  reasonable  to  suppose,  for 
the  sake  of  explanation,  or  which  at  least  express  the  last  mind 
of  the  parties.  So  also  later  treaties  explain  or  abrogate  older 
ones. 

2.  Special  clauses  have  the  preference  over  general,  and  for 
the  most  part  prohibitory  over  permissive. 

In  treaties  made  with  different  parties  the  inquiry  in  cases 
of  conflict  touches  the  moral  obligation  as  well  as  the  meaning. 
Here  the  earlier  treaty  must  evidently  stand  against  the  latter, 
and  if  possible,  must  determine  its  import  where  the  two  seem 
to  conflict. 

In  general,  conditional  clauses  are  inoperative,  as  long  as  the 
condition  is  unfulfilled ;  and  are  made  null  when  it  becomes 
impossible.  Where  things  promised  in  a  treaty  are  incompa 
tible,  the  promisee  may  choose  which  he  will  demand  the  per 
formance  of,  but  here  and  elsewhere  an  act  of  expediency  ought 
to  give  way  to  an  act  of  justice.'* 

*  For  some  remarks  on  the  language  used  in  making  treaties,  which  logically 
belong  here,  see  §  150,  in  the  section  relating  to  treaties  of  peace. 


PART      II. 

INTERNATIONAL   LAW  AND   USAGE   IN   A   STATE    OF    WAR. 


CHAPTEE  I. 

OP  THE   RIGHTS   OF    SELF-DEFENCE  AND    REDRESS   OF   INJURIES   PERTAIN 
ING  TO   NATIONS,    OR   OF    WAR,   CAPTURE,  AND   TREATIES   OF  PEACE. 

SECTION  I.— Of  War. 

§110. 

PEACE  is  the  normal  state  of  mankind,  just  as  society  and 
orderly  government  are  natural;  and  war,  like 

IT,-  j    j  j  £  Of  war  in  general. 

barbarism,  must  be  regarded  as  a  departure  from 
the  natural  order  of  things.  But  as  the  present  state  of  nature 
in  the  individual,  being  abnormal  and  unnatural  in  the  higher 
sense,  leads  to  injuries,  trespasses  on  rights,  and  attempts  at 
redress,  so  is  it  in  the  society  of  nations.  International  law 
assumes  that  there  must  be  "  wars  and  fightings  "  among  na 
tions,  and  endeavors  to  lay  down  rules  by  which  they  shall  be 
brought  within  the  limits  of  justice  and  humanity.  In  fact, 
wars  and  the  relations  in  which  nations  stand  to  one  another, 
as  belligerent  or  neutral,  form  the  principal  branch  of  interna 
tional  law, — so  much  so  that  in  a  state  of  assured  and  perma 
nent  peace  there  would  be  little  need  of  this  science,  whose 
tendency,  therefore,  justly  estimated,  is  to  bring  about  a  time 
when  it  shall  itself  lose  the  greater  part  of  its  importance. 

In  the  sections  of  this  chapter  we  shall  need  to  consider  war 
as  to  its  notion  and  moral  ground,  the  mode  of  commencing  it, 
and  those  states  of  international  intercourse  which  lie  between 
war  and  peace,  the  relation  into  which  it  brings  the  belliger 
ent  parties,  its  usages  and  laws  on  land  and  sea  especially 


188  RIGHTS    OF    SELF-DEFENCE  §  111 

those  which  affect  property  taken  on  the  latter,  and  lastly  its 
suspension  and  final  termination.  Then,  in  another  chapter, 
the  rights  and  obligations  of  neutrals  will  be  treated  of,  as 
affected  by  the  relations  of  the  belligerents. 

§111.  ' 

War  may  be  defined  to  be  an  interruption  of  a  state  of 
war  and  a  just  peace  for  the  purpose  of  attempting  to  procure 
war,  what?  gOQ(j  or  prevent  evil  by  force ;  and  a  just  war  is 
an  attempt  to  obtain  justice  or  prevent  injustice  by  force,  or, 
in  other  words,  to  bring  back  an  injuring  party  to  a  right  state 
of  mind  and  conduct  by  the  infliction  of  deserved  evil.  A  just 
war  again,  is  one  that  is  waged  in  the  last  resort,  when  peace 
ful  means  have  failed  to  procure  redress,  or  when  self-defence 
calls  for  it.  We  have  no  right  to  redress  our  wrongs  in  a  way 
expensive  and  violent,  when  other  methods  would  be  successful. 

By  justice,  however,  we  intend  not  justice  objective,  but  as 
it  appears  to  a  party  concerned,  or,  at  least,  as  it 

Who  is  to  judge?     .        Y.  r.      J  '    .    ' 

is  claimed  to  exist.  From  the  independence  of 
nations  it  results  that  each  has  a  right  to  hold  and  make  good 
its  own  view  of  right  in  its  own  affairs.  "When  a  quarrel  arises 
between  two  states,  others  are  not  to  interfere  (Comp.  §  20)  be 
cause  their  views  of  the  right  in  the  case  differ  from  those  of  a 
party  concerned ;  or  at  least  they  are  not  to  do  this  unless  the 
injustice  of  the  war  is  flagrant  and  its  principle  dangerous.  It 
a  nation,  however,  should  undertake  a*  war  with  no  pretext  of 
right,  other  states  may  not  only  remonstrate,  but  use  force  to 
put  down  such  wickedness. 

It  may  be  said  that  as  individuals  ought  not  to  judge  in 
Are  nations  their  own  cause,  so  nations  ought  to  submit  their 
Sd  d°flA£  differences  to  third  parties  and  abide  by  the  issue. 
to  arbitrators?  It  ^^  doubtless  be  desirable,  if  resort  were 
more  frequently  had  to  arbitration  before  the  last  remedy  of 
wrongs  were  used,  and  probably,  as  the  world  grows  better,  this 
practice  will  more  and  more  prevail.  But  in  the  past  a  multi 
tude  of  aggressions  have  occurred  which  could  not  be  so  pre 
vented,  which  needed  to  be  repelled  by  the  speediest  means ; 


§112  AND    REDRESS   OF   INJURIES,   ETC.  189 

nor  have  the  intelligence  and  probity  of  men  been  such  that 
good  arbitrators  could  always  be  found.  The  question,  how 
ever,  relates  to  duty,  and  does  not  affect  the  justice  of  a  war 
which  a  nation  should  undertake  on  grounds  which  approved 
themselves  to  its  own  unaided  judgment.  (Comp.  §  19.) 

A  state  bound  by  treaty  to  assist  another  in  the  event  of 
war,  must  of  course  judge  whether  the  casusfce-  Ought  an  a]ly  to 
deris  exists,  and  is  also  bound  to  pass  judgment  Judse? 
on  the  nature  of  the  war,  since  no  treaty  can  sanction  injustice. 


The  rightfulness  of  war,  that  is  of  some  wars,  will  be  clear 
when  we  consider  that  to  states,  by  the  divine  Ri^tfuineea  of 
constitution  of  society,  belong  the  obligations  of  war  iu  generaL 
protecting  themselves  and  their  people,  as  well  as  the  right  of 
redress,  and  even,  perhaps,  that  of  punishment.  (§  20.)  To 
resist  injury,  to  obtain  justice,  to  give  wholesome  lessons  to 
wrong-doers  for  the  future,  are  prerogatives  deputed  by  the 
Divine  King  of  the  world  to  organized  society,  which,  when 
exercised  aright,  cultivate  the  moral  faculty,  and  raise  the  tone 
of  judging  through  mankind.  War  is  a  dreadful  thing  when 
evil  suffered  or  inflicted  is  considered  ;  and  yet  war  has  often 
been  the  restorer  of  national  virtue,  which  had  nearly  perished 
under  the  influence  of  selfish,  luxurious  peace. 

A  war  may  be  waged  to  defend  any  right  which  a  state  is 
bound  to  protect,  or  to  redress  wrong,  or  to  pre-  For  what   may 

T          T     -i     •     •  A       i    f-t  \  war     be     under- 

vent  apprehended  injury.     And  (1.)  a  state  may  taken? 
go  to  war  to  defend  its  sovereignty  and  independence,  —  that  is, 
its  political  life,  —  or  its  territory.     This  reason  for  war  is  an 
alogous  to  the  individual's  right  of  self-preservation,  and  of  de 
fending  his  house  when  attacked. 

(2.)  The  state  being  bound  to  protect  the  individual  inhab 
itant  in  all  his  rights,  is  his  only  defender  against  foreign  vio 
lence,  and  may  redress  his  wrongs  even  by  war.  But  here  it 
is  reasonable  to  consider  the  extent  of  the  injury,  and  the  great- 
of  the  evil  which  the  remedy  may  involve.  A  state  may 


190  RIGHTS    OF    SELF-DEFENCE  §  113 

forbear  to  redress  its  own  public  wrongs,  much  more  the  smaller 
ones  of  individuals. 

(3.)  A  state  may  engage  in  war  to  obtain  satisfaction  for 
violations  of  its  honor,  as  for  insults  to  its  flag  or  its  ambassa 
dors,  or  its  good  name.  We  have  seen  (§  18),  that  a  state  has 
a  right  of  reputation,  that  this  right  is  extremely  important, 
and  that  infractions  of  it  cannot  fail  to  arouse  a  deep  sense  of 
wrong  in  a  high-minded  people.  Kedress,  therefore,  is  here  as 
just  and  natural,  as  suits  for  libel  or  slander  between  individu 
als.  It  is  plain,  however,  that  every  small  want  of  comity  or 
petty  insult  does  not  warrant  hostile  measures,  though  it  may 
call  for  remonstrance. 

(4.)  Violations  of  those  rights  which  nations  concede  to  one 
another  by  treaty  may  call  for  the  redress  of  war.  A  contract 
is  broken,  and  there  is  no  court  before  which  the  party  doing 
the  injury  can  be  summoned. 

(5.)  The  prevention  of  intended  injury  is  a  ground  of  war. 
This  indeed  is  a  case  of  self-defence,  only  the  injury  must  not 
be  remote  or  constructive,  but  fairly  inferrible  from  the  prep 
arations  and  intentions  of  the  other  party.  The  injury,  again, 
which  is  to  be  prevented  may  not  be  aimed  directly  against  a 
particular  state,  but  may  affect  the  equilibrium  of  a  system  of 
states.  Thus  the  ambition  of  a  leading  state,  it  is  now  held, 
may,  by  disturbing  the  balance  of  power  in  Europe,  provoke 
the  interference  of  others  upon  the  same  continent.  (Comp. 
§43.) 

(6.)  In  some  rare  cases  a  great  and  flagrant  wrong  commit 
ted  by  another  nation,  against  religion  for  instance,  or  liberty, 
may  justify  hostile  interference  on  the  part  of  those  who  are 
not  immediately  affected.  (§  50.)  And  this,  not  only  because 
the  wrong,  if  allowed,  may  threaten  all  states,  but  also  because 
the  better  feelings  of  nations  impel  them  to  help  the  injured. 

§  113. 
"Wars  may  be  waged  against  foreign  states  in  the  same  poli- 


of  war,  of-  tical  system,  or  nations  out  of  the  pale  of  Christian 

feneive    and     de-       .     ...  .  J    .  .  .  r  , 

civilization,  against  savages,  against  pirates,  or  by 


§  114  AND    REDRESS    OF    INJURIES,    ETC.  191 

the  parts  of  a  state  against  each  other.  Of  the  most  of  these, 
after  the  first,  international  law  has  usually  but  a  word  to  say. 
Wars,  again,  have  been  divided  into  defensive  and  offensive. 
This  distinction  is  of  no  very  great  importance,  since,  as  we 
have  seen,  the  two  may  differ  less  in  essence  than  in  form, 
and,  as  it  respects  form,  the  one  runs  into  the  other.  A  wronged 
nation,  or  one  fearing  sudden  wrong,  may  be  the  first  to  attack, 
and  that  is  perhaps  its  best  defence.  Moreover,  offensive  wars, 
however  apt  to  be  unjust,  have  usually  some  pretext  of  justice 
to  urge  in  their  favor,  which  nations,  except  in  extreme  cases, 
must  respect,  unless  every  nation  is  to  become  a  judge  and  a 
party. 

§114. 

Nations  have  sometimes  resorted  to  measures  for  obtaining 

redress,  which  have  a  hostile  character,  and  yet  Measures  for  re- 

7  i  T7  z  *      •  j  drc83  fulling  8llort 

fall  short  of  actual  war.     Embargo ',  retorsion,  and  of  war. 

reprisal,  are  of  this  description. 

1.  An  embargo  (from  the   Spanish  and  Portuguese,  em- 
oargar.  to  hinder  or  detain,  the  root  of  which  is 

,'  ,  *  -.          -.  .        7  N     .       .        .  Embargo. 

the  same  as  that  01  oar,  barricade),  is,  m  its  spe 
cial  sense,  a  detention  of  vessels  in  a  port,  whether  they  be  na 
tional  or  foreign,  whether  for  the  purpose  of  employing  them 
and  their  crews  in  a  naval  expedition,  as  was  formerly  prac 
tised,  or  for  political  purposes,  or  by  way  of  reprisals.  A  civil 
embargo  may  be  laid  for  the  purpose  of  national  welfare  or 
safety,  as  for  the  protection  of  commercial  vessels  against  the 
rules  of  belligerent  powers  which  would  expose  them  to  cap 
ture.  Such  was  the  measure  adopted  by  the  United  States  in 
December,  1807,  which  detained  in  port  all  vessels  except  those 
which  had  a  public  commission,  and  those  that  were  already 
laden  or  should  sail  in  ballast.  The  right  to  adopt  such  a  mea 
sure  of  temporary  non-intercourse,  is  undoubted.  Great  Britain, 
although  injured  by  the  act,  acknowledged  that  it  afforded  to 
foreign  nations  no  ground  of  complaint.  And  yet,  in  the  half 
century  since  that  event,  uninterrupted  intercourse  has  come 
to  be  regarded  almost  as  an  absolute  right,  and  the  injuries  in- 


192  EIGHTS    OF   SELF-DEFENCE  §  114 

flicted  in  such  a  way  on  friendly  states  would  cause  them  to 
protest  with  energy  or  to  retaliate. 

A  hostile  embargo  is  a  kind  of  reprisals  by  one  nation  upon 
vessels  within  its  ports  belonging  to  another  na- 

Hostile  embargo.  r  3    ,° 

tion  with  which  a  difference  exists,  for  the  pur 
pose  of  forcing  it  to  do  justice.  If  this  measure  should  be  fol 
lowed  by  war,  the  vessels  are  regarded  as  captured,  if  by  peace, 
they  are*  restored.  "  This  species  of  reprisal,"  says  Kent,  (I. 
61,)  "  is  laid  down  in  the  books  as  a  lawful  measure  according 
to  the  usage  of  nations,  but  it  is  often  reprobated,  and  cannot 
well  be  distinguished  from  the  practice  of  seizing  property 
found  in  the  territory  upon  the  declaration  of  war."  Although 
such  a  measure  might  bring  an  adversary  to  terms,  and  pre 
vent  war,  yet  its  resemblance  to  robbery,  occurring,  as  it  does, 
in  the  midst  of  peace,  and  its  contrariety  to  the  rules  according 
to  which  the  private  property  even  of  enemies  is  treated,  ought 
to  make  it  disgraceful,  and  drive  it  into  disuse. 

2.  Retorsion  (from  retorquere,  French,  retordre,  retort),  or 

retaliation,  is  to  applv  the  lex  talionis  to  another 

Retorsion.  .  r.-f  J      .  .  . 

nation, — treating  it  or  its  subjects  in  similar  cir 
cumstances  according  to  the  rule  which  it  has  set.  Thus,  if  a 
nation  has  failed  in  comity  or  politeness,  if  it  has  embarrassed 
intercourse  by  new  taxes  on  commerce  or  the  like,  the  same  or 
an  analogous  course  may  be  taken  by  the  aggrieved  power  to 
bring  it  back  to  propriety  and  duty.  The  sphere  of  retorsion 
ought  to  be  confined  within  the  imperfect  rights  or  moral 
claims  of  an  opposite  party.  Rights  ought  not  to  be  violated 
because  another  nation  has  violated  them. 

3.  Reprisals  (from  reprendere,  Latin,  repressalice,  in  medi 

aeval  Latin,  reprisailles.  French),  consist  properly 

Reprisals.  ?     •        ,  / 

in  recovering  what  is  our  own  by  force,  then  in 
seizing  an  equivalent,  or,  negatively,  in  detaining  that  which 
belongs  to  our  adversary.  Reprisals,  says  Yattel,  "  are  used 
between  nation  and  nation  to  do  justice  to  themselves,  when 
they  cannot  otherwise  obtain  it.  If  a  nation  has  taken  posses 
sion  of  what  belongs  to  another ;  if  it  refuses  to  pay  a  debt,  to 
repair  an  injury,  to  make  a  just  satisfaction,  the  other  may 


§  114  AND    REDRESS    OF    INJURIES,    ETC.  .    '      193 

seize  what  belongs  to  it,  and  apply  it  to  its  own  advantage,  till 
it  has  obtained  what  is  due  for  interest  and  damage,  or  keep  it 
as  a  pledge  until  full  satisfaction  has  been  made.  In  the  last 
case  it  is  rather  a  stoppage  or  a  seizure  than  reprisals ;  but  they 
are  frequently  confounded  in  common  language."  (B.  II.  § 
34:2.)  Reprisals  differ  from  retorsion  in  this,  that  the  essence 
of  the  former  consists  in  seizing  the  property  of  another  nation 
by  way  of  security,  until  it  shall  have  listened  to  the  just  re 
clamations  of  the  oifended  party,  while  retorsion  includes  all 
kinds  of  measures  which  do  an  injury  to  another,  similar  and 
equivalent  to  that  which  we  have  experienced  from  him.*  Em 
bargo,  therefore,  is  a  species  of  repTisals. 

Reprisals  may  be  undertaken  on  account  of  any  injury,  but 
are  chiefly  confined  to  cases  of  refusal  or  even  obstinate  delay 
of  justice.  Grotius  adds  that  they  are  authorized,  "  si  in  re 
minime  dubia  plane  contra  jus  judicatum  sit."  (III.  2,  §  5,  1.) 
But  this  is  an  unsafe  opinion,  and  to  be  acted  upon  only  in  an 
extreme  case,  for  the  sentence  of  a  regular  tribunal  will  always 
be  supported  by  some  plausible,  if  not  valid  reason:  there 
should  be  the  fullest  proof  of  an  intention  to  deny  or  to  over 
turn  justice. 

Where  the  property  of  a  state  is  seized  by  way  of  reprisals, 
the  proceeding  needs  no  defence ;  on  the  other  hand,  to  take  the 
goods  of  private  persons  as  security  for  the  reparation  of  public 
wrongs  is  indefensible  except  on  the  ground  that  a  state  and 
its  subjects  are  so  far  one  as  to  give  it  a  claim  on  their  pr^p- 
erty  for  public  purposes,  and  that  the  injured-  state  takes  the 
place  of  the  injurer,  and  exercises  its  power  by  the  only  means 
within  its  reach.  As  therefore,  when  a  man's  land  is  taken  for 
a  public  road,  he  has  a  claim  for  compensation,  so,  when  a  man 
loses  his  property  by  the  violent  process  of  a  foreign  state 
against  his  own  country,  not  he,  but  the  whole  society  ought  to 
make  his  loss  good.  Still  reprisals  are  inhumane,  and  like 
seizure  of  private  effects  in  land  war,  will,  it  is  to  be  hoped, 
ere  long  entirely  cease. 

*  Pinheiro-Ferreira  in  de  Martens,  Vol.  II.  §  256. 
13 


194:  RIGHTS    OF    SELF-DEFENCE  §  114 

The  Romans  knew  nothing  of  reprisals,*  but  with  great 
Greek  and  Roman  formality  defined  and  observed  the  limits  between 
peace  and  war.  The  Greeks,  however,  had 
usages,  similar  to  this,  drawn  from  their  simpler  semi-barbar 
ous  times.  Thus,  before  war  was  declared,  and  after  the  denial 
of  justice,  they  gave  license  to  their  citizens  to  take  plunder 
from  the  offending  state  on  land  and  sea.  There  was  also  a 
custom  prevailing  between  border  states,  when  a  homicide  had 
been  committed,  and  the  man-slayer  was  not  given  up  to  the 
relatives  of  the  deceased,  of  allowing  them  to  seize  and  keep  in 
chains  three  countrymen  of  the  wrong-doer,  until  satisfaction 
should  be  rendered. 

The  Greeks  here  present  to  us  two  forms  of  reprisals,  the 
one  where  the  state  ffives  authority  to  all,  or  in  a 

Mediaeval  and  ...  _  ,     .        /      .  '       „ 

public  way  attempts  to  obtain  justice  by  iorce, 
which  is  called  general,  and  the  other,  where  power  is  given  to 
the  injured  party  to  right  himself  by  his  own  means,  or  special 
reprisals.  The  latter  has  now  fallen  into  disuse,  and  would  be 
regarded  as  an  act  of  hostility,  but  with  the  other  was  a 
received  method  of  redress  in  the  middle  ages ;  nor  was  it 
strange  that  a  private  person,  by  the  leave  of  his  superior, 
should  wage  a  war  of  his  own,  when  private  wars  were  a  part 
of  the  order  of  things.  Mr.  Ward  (I.  176),  and  the  English 
historians,  mention  an  instance  of  reprisals  between  the  English 
and  France  in  the  13th  century,  which  might  seem  to  pertain 
to  J:he  Dyaks  or  the  Ojibways.  In  1292,  two  sailors,  a  Norman 
and  an  Englishman,  having  come  to  blows  at  Bayonne,  the 
latter  stabbed  the  former,  and  was  not  brought  before  the 
courts  of  justice.  The  Normans  applied  to  Philip  the  Fair 
for  redress,  who  answered  by  bidding  them  take  their  own 
revenge.  They  put  to  sea,  seized  the  first  English  ship  they 
met,  and  hung  up  several  of  the  crew  at  the  mast  head.  The 
English  retaliated  without  applying  to  their  government,  and 
things  arose  to  such  a  pitch,  that  200  Norman  vessels  scoured 

*  Osenbriiggen,  dejure  etc.,  p.  35.  Schomann,  Antiq.  juris  publici,  p.  366,  and 
Lia  Griech.  Alterthiimer,  2,  p.  6.  Comp.  Bynkershoek,  Quaest.  J.  P.  I.  24.  The 
Greeks  said,  av\a.  SiSovoi,  pvaia  Ka.Tayyt\\fiv  Kara  TWOS. 


§115  AND    REDRESS    OF    INJURIES,    ETC.  195 

the  English  seas,  hanging  all  the  sailors  they  caught,  while  the 
English,  in  greater  force,  destroyed  a  large  part  of  the  Norman 
ships,  and  15,000  men.  It  was  now  that  the  governments 
interposed,  and  came  at  length  into  a  war  which  stripped  the 
English  of  nearly  all  Aquitaine,  until  it  was  restored  in  1303. 

Every  authority  in  those  times,  which  could  make  war, 
could  grant  letters  of  reprisals.  But  when  power 

.  .  ...  ,  .  modern  usage. 

began  to  be  more  centralized,  the  sovereign  gave 
to  magistrates,  governors  of  provinces  and  courts  the  right  of 
issuing  them,  until  at  length  this  right  was  reserved  for  the 
central  government  alone.  In  France,  Charles  VIII. ,  at  the 
instance  of  the  states -general  held  at  Tours,  in  1484,  first  con 
fined  this  power  to  the  king,  for,  said  the  estates,  "  reprisals 
ought  not  to  be  granted  without  great  deliberation  and  knowl 
edge  of  the  case,  nor  without  the  formalities  of  law  in  such 
matters  required."  The  ordinance  of  Louis  XIY.,  on  the 
marine,  published  in  1681,  prescribes  the  method  in  which 
injured  persons,  after  they  had  shown  the  extent  of  their 
damages  received  from  a  foreigner,  and  after  the  king's  ambas 
sadors  had  taken  the  proper  steps  at  the  foreign  courts,  should 
receive  letters  of  reprisals  permitting  them  to  make  prizes  at 
sea  of  property  belonging  to  the  subjects  of  the  state  which 
had  denied  them  justice,  and  having  brought  their  prizes  be 
fore  the  court  of  admiralty,  should,  in  case  everything  was  law 
ful,  be  reimbursed  to  the  extent  of  their  injuries. 

Since  the  end  of  the  17th  century  but  few  examples  have 
occurred  of  reprisals  made  in  time  of  peace,  and  a  number  of 
treaties  restrict  the  use  of  them  to  the  denial  or  delay  of  jus 
tice,* 

§115. 

War  between  independent  sovereignties  is,  and  ought  to  be, 
an  avowed  open  way  of  obtaining  justice.  For  commencement 

i  •  %,  1       .  of  war.     Declara- 

every  state  has  a  right  to  know  what  its  relations  tion. 

are  towards  those  with  whom  it  has  been  on  terms  of  amity, — 

whether  the  amity  continues  or  is  at  an  end.     It  is  necessary, 

*  Ortolan,  I.  391-401. 


196  RIGHTS    OF    SELF-DEFENCE  §  115 

therefore,  that  some  act  show  in  a  way  not  to  be  mistaken  that 
a  new  state  of  things,  a  state  of  war,  has  begun. 

The  civilized  nations  of  antiquity  generally  began  war  by 
Greek  and  Roman  a  declaration  of  their  purpose  so  to  do.  Among 
the  Greeks,  a  herald,  whose  person  was  sacred 
and  inviolate,  carried  the  news  of  such  hostile  intent  to  the 
enemy,  or  accompanied  an  ambassador  to  whom  this  business 
was  committed.  Only  in  rare  cases,  when  men's  passions  were 
up,  was  war  a/cypv/cTos,  i.  e.,  such,  that  no  communications  by 
heralds  passed  between  the  enemies.  Among  the  Romans, 
the  ceremonies  of  making  known  the  state  of  war,  were  very 
punctilious.  This  province  belonged  to  the  Fetiales,  a  college 
of  twenty  men,  originally  patricians,  whose  first  duty  was  to 
demand  justice,  res  repetere,  literally,  to  demand  back  property, 
an  expression  derived  from  the  times  when  the  plunder  of  cattle 
or  other  property,  was  the  commonest  offence  committed  by  a 
neighboring  state.  Three  or  four  of  the  college,  one  of  their 
number  being  pater  patratus  for  the  time,  and  so  the  prolo 
cutor,  passed  the  bounds  of  the  offending  state,  and  in  a 
solemn  formula,  several  times  repeated,  demanded  back  what 
was  due  to  the  Roman  people.  On  failure  to  obtain  justice, 
there  was  a  delay  of  three  and  thirty  days,  when  the  pater 
patratus  again  made  a  solemn  protestation  that  justice  was 
withheld.  Then  the  king  consulted  the  senate,  and  if  war  was 
decreed,  the  pater  patratus  again  visited  the  hostile  border, 
with  a  bloody  lance,  which  he  threw  into  the  territory,  while 
he  formally  declared  the  existence  of  the  war.  This  custom, 
which  seems  to  have  been  an  international  usage  of  the  states 
of  middle  and  southern  Italy,  continued  into  the  earlier  times 
of  the  republic ;  but  wrhen  the  theatre  of  war  became  more 
distant,  the  fetialis,  consul,  or  prsetor,  contented  himself  with 
hurling  his  lance  from  a  pillar  near  the  temple  of  Bellona  in 
the  direction  of  the  hostile  territory,  while  the  declaration  of 
war  itself  was  made  by  the  military  commander  of  the  province 
through  an  ambassador.  It  was  thus  always  a  principle  with 
the  Romans,  as  Cicero  (de  offic.  I.  11)  has  it,  "  nullum  helium 
esse  justum,  nisi  quod  aut  rebus  repetitis  geratur,  aut  denuntia- 


§  115  AND    REDRESS    OF   INJURIES,    ETC.  197 

turn  ante  sit  et  indicium."     But  the  form  satisfied  them,  and 
they  cared  little  for  the  spirit.* 

So  also  in  the  middle  ages,  war  could  not  be  honorably 
begun  without  a  declaration ;  but  the  spirit  which  MedijBval  prac. 
dictated  this,  seems  to  have  been,  as  Mr.  "Ward  tice* 
remarks,  rather  a  knightly  abhorrence  of  every  thing  underhand 
ed  and  treacherous,  than  a  desire  to  prevent  the  effusion  of 
blood  by  giving  the  enemy  time  to  repair  his  fault.  Even  in 
the  private  warfare  which  characterized  that  age,  as  much  as 
in  the  duel,  a  challenge  or  formal  notice  to  the  enemy  was 
necessary.  The  declaration  of  war  was  made  by  heralds  or 
other  messengers :  that  of  Charles  Y.  of  France  against  Edward 
HI.,  was  carried  to  that  king  by  a  common  servant,  the  letter 
containing  it  bearing  the  seals  of  France.  Such  formal  chal 
lenges  were  sanctioned  by  law.  Thus  the  public  peace  of  the 
Emperor  Barbarossa,  in  1187,  contains  the  clause  that  an  in 
jured  party  might  prosecute  his  own  rights  by  force,  provided 
he  gave  to  his  adversary  three  days'  notice  that  he  intended  to 
make  good  his  claims  in  open  war.  And  the  Golden  Bull  of 
the  Emperor  Charles  IY.  in  1356,  forbids  invasions  of  the  ter 
ritory  of  others  on  pretext  of  a  challenge  unless  the  same  had 
been  given  for  three  natural  days  to  an  adversary  in  person, 
or  publicly  made  known  before  witnesses  at  his  usual  place  of 
residence ;  and  this,  on  pain  of  infamy,  just  as  if  no  challenge- 
had  been  offered. f 

The  modern  practice  ran  for  some  time  in  the  same  direc 
tion,   but   since   the  middle   of   the   eighteenth 
century  formal  declarations  have  not  been  exten 
sively  made,  and  are   falling  into   disuse.     Instances  of  the 
same  may  be  gathered  from  still  earlier  times.     Thus  no  decla 
ration  preceded  the  expedition  of  the  grand  Armada  in  1588, 
—before  which  indeed  a  state  of  hostilities  existed  in  fact, — 
and  the  war  between  England  and  Holland,  in  1664,  began 
with  an  act  of  the  English  Council,  authorizing  general  repri- 

*  For  the  Greeks,  see  Schomann,  u.  s.     For  the  Romans,  Osenbruggen,  pp.  27- 
34,  Bekker-Marquardt,  Rom.  Alterthiim.  IV.  380-388. 
f  Ward,  II.  123,  seq. 


198  RIGHTS    OF    SELF-DEFENCE  §  116 

sals,  which  became  a  full-blown  war  without  any  declaration. 
Thus  also  the  war  of  Orleans,  so  called,  was  begun  by  Louis 
XIV.  in  1688,  before  he  issued  his  manifests ;  in  the  war  of  the 
succession  the  battle  of  Dettingen  had  been  fought  before  the 
French  declared  war  against  Great  Britain  and  Austria ;  and 
in  the  seven  years  war  hostilities  began  on  this  continent  be 
tween  England  and  France  two  years  before  the  parties  to  this 
important  war  made  their  declarations.* 

This  disuse  of  declarations  does  not  grow  out  of  an  inten- 
Reasons  for  the  ^OIi  *o  *a^e  the  enemy  at  unawares,  which  would 
modem  usage.  imply  an  extreme  degradation  of  moral  principle, 
but  out  of  the  publicity  and  circulation  of  intelligence  peculiar 
to  modern  times.  States  have  now  resident  ambassadors 
within  each  other's  bounds,  who  are  accurately  informed  in 
regard  to  the  probabilities  of  war,  and  can  forewarn  their 
countrymen.  "War  is  for  the  most  part  the  end  of  a  long 
thread  of  negotiations,  and  can  be  generally  foreseen.  Inten 
tions,  also,  can  be  judged  of  from  the  preparations  which  are 
on  foot,  and  nations  have  a  right  to  demand  of  one  another 
what  is  the  meaning  of  unusual  armaments.  It  is,  also,  tolera 
bly  certain  that  nations,  if  they  intend  to  act  insidiously,  will 
not  expose  their  own  subjects  in  every  quarter  of  the  globe  to 
the  embarrassments  of  a  sudden  and  unexpected  war.  And 
yet  the  modern  practice  has  its  evils,  so  that  one  cannot  help 
wishing  back  the  more  honorable  usage  of  feudal  times. 

This  rule,  be  it  observed,  of  declaring  war  beforehand, 
so  long  as  it  was  thought  obligatory,  only  bound  the  assailant. 
The  invaded  or  defensive  state  accepted  the  state  of  war  as  a 
fact,  without  the  formalities  of  a  declaration. 

§116. 

But  if  a  declaration  of  war  is  no  longer  necessary,  a  state 
which  enters  into  war  is  still  bound  (1.)  to  indi- 

What  notice  of  a  .  ».i        i  • .    i 

state  of  war  ought  c&iQ  in  some  way,  to  the  party  with  whom  it  has 

tobegiven?  ^ '  ,     »     ,.  J          1    x- 

a   difficulty,   its   altered  feelings   and   relations. 
This  is  done  by  sending  away  its  ambassador,  by  a  state  of 

*  Comp.  Bynkersh.  Quaest.  J.  P.  I.  2,  and  among  modern  systematists  Phillimore 
III.  75-102. 


§  117  AND    REDRESS    OF    INJURIES,    ETC.  199 

non-intercourse,  and  the  like.  (2.)  It  is  necessary  and  usual 
that  its  own  people  should  have  information  of  the  new  state 
of  things,  otherwise  their  persons  and  property  may  be  exposed 
to  peril.  (3.)  Neutrals  have  a  right  to  know  that  a  state  of 
war  exists,  and  that,  early  enough  to  adjust  their  commercial 
transactions  to  the  altered  state  of  things,  otherwise  a  great 
wrong  may  be  done  them.  Such  notice  is  given  in  manifestos. 
"  These  pieces,"  says  Yattel,  "never  fail  to  contain  the  justifi 
cative  reasons,  good  or  bad,  for  proceeding  to  the  extremity 
of  taking  up  arms.  The  least  scrupulous  sovereign  would  be 
thought  just,  equitable,  and  a  lover  of  peace ;  he  is,  sensible 
that  a  contrary  reputation  might  be  detrimental  to  him.  The 
manifesto  implying  a  declaration  of  wary  or  the  declaration 
itself,  which  is  published  all  over  the  state,  contains  also  the 
general  orders  to  his  subjects  relative  to  their  conduct  in  the 
war."  * 

§m. 

The  old  strict  theory  in  regard  to  a  state  of  war  was,  that 
each  and  every  subject  of  the  one  belligerent  is  at  Effi>cts  of  a  gtau 
war  with  each  and  every  subject  of  the  other,  ofwar- 
Now  as  it  was  also  a  received  rule  that  the  persons-  and  goods 
of  my  enemy  belong  to  me  if  I  can  seize  themT  there  was  no 
end  to  the  amount  of  suffering  which  might  be  inflicted  on  the 
innocent  inhabitants  of  a  country  wTithin  the  regular  operations 
of  war.  It  is  needless  to  say  that  no  Christian  state  acts  on 
such  a  theory,  nor  did  the  Greeks  and  Romans  generally  carry 
it  out  in  practice  to  its  extreme  rigor.  In  particular  there  is 
now  a  wide  line  drawn  between  combatants-  and  non-combat- 
unts,  the  latter  of  whom,  by  modern  practice.,,  are  on  land  ex 
empted  from  the;  injuries  and  molestations  of  war,  as  far  as  is 
consistent  with  the  use  of  such  a  method  of  obtaining  justice. 

It  follows  from  the  notion  of  war,  as  an  interruption  oi 
peaceful  intercourse,  that  all  commerce  between  Non.jntercouree 
the  subjects  of  the  belligerents  is  unlawful,  unless  vilh  the  enemy* 
expressly  licensed,  or  necessary  for  the  war  itself.     Hence  all 
partnerships  with  an  enemy's  subjects,  and  all  power  of  prose- 

*  Vattel,  B.  III.  4,  §  64. 


200  RIGHTS    OF    SELF-DEFENCE  §118 

cuting  claims  through  the  courts  of  the  enemy  are  suspended 
during  the  war  ;  and  all  commercial  transactions  with  the  sub 
jects  or  in  the  territory  of  the  enemy  of  whatever  kind,  except 
ransom  contracts  (§  142),  whether  direct,  or  indirect,  as  through 
an  agent  or  partner  who  is  a  neutral,  become  illegal  and  void. 
In  the  case  where  the  business  is  conducted  by  a  neutral  part 
ner,  his  share  in  the  concern  alone  is  protected,  while  that  of 
the  belligerent's  subject  is,  if  seized,  liable  in  his  own  country 
to  confiscation.  (Comp.  §  168.) 

It  is  not  unusual,  however,  for  a  belligerent  to  grant  to  its 
License  to  trade  own  subjects  a  license  to  carry*  on  a  certain  speci- 
with  the  enemy.  fied  .trade  with  the  enemy,  which,  if  the  other 
party  allows  it,  becomes  a  safe  and  legitimate  traffic.  It  is 
common,  also,  for  the  subjects  of  one  belligerent  to  obtain  such 
a  license  from  the  other  ;  but,  of  course,  this  of  itself  will  not 
protect  them  against  the  laws  of  their  own  country.  (Comp. 


§118. 

From  the  strict  theory  of  hostile  relations  laid  down  above, 
it  would   follow,   (1.)   that  an   enemv's   subjects 

Enemy's   subjects         ••,.-,  *,  -, 

and  enemy's  prop-  within  the  country  could  be  treated  as  prisoners 

erly  within  a  bel-  <L     '  •  •  "  <  ;  ••  • 

iigerent'8  country,  of  war.  But  such  rigor  is  unknown,  unless  in 
measures  of  retarlation.  The  most  severe  treatment  of  the  for 
eigner  allowed  by  modern  usage  is  to  require  him  to  leave  the 
country  within  a  certain  time.*  (2.)  That  enemies'  property 
within  the  country  at  the  breaking  out  of  a  war  was  liable  to 
confiscation.  This  principle  would  apply  also  to  debts  due  to 
them  at  that  time.  And  it  would  be  a  further  application  of 
it,  if  shares  in  the  public  stocks,  held  by  a  foreign  government, 
were  confiscated.  "With  regard  to  the  two  former  cases,  the 
Supreme  Court  of  the  United  States  has  decided,  in  accordance 
with  the  body  of  earlier  and  later  text-writers,  that  by  strict 

*  Bonaparte  in  1803,  upon  the  rupture  with  England  after  the  peace  of  Amiens, 
ordered  the  arrest  of  all  Englishmen  in  France  between  sixteen  and  sixty  years  of 
age,  that  they  might  serve  as  hostages  for  such  Frenchmen  as  might  be  captured  on 
board  of  French  vessels  after  the  breach  of  peace  and  in  ignorance  of  it.  The 
Batavian  republic  was  bidden  to  issue  the  same  order.  (Garden,  VIII.  151). 


§  118  AND    REDRESS    OF    INJURIES,    ETC.  201 

right  such  property  is  confiscable,  but  they  add,  that  such  a 
measure  requires  the  sanction  of  the  national  legislature,  which, 
it  is  to  be  hoped,  will  never  consent  to  disgrace  the  country  by 
an  act  of  that  kind.*  For  the  usage  is  now  general,  if  not  fixed, 
with  the  single  exception  of  measures  of  retorsion,  to  allow  the 
subjects  of  the  enemy  to  remain  within  the  territory  during 
good  behavior,  in  the  enjoyment  of  their  property,  or  to  give 
them,  by  public  proclamation,  reasonable  time  to  remove  with 
their  effects  from  the  country.  The  English  and  French  in  the 
late  Crimean  war  allowed  Russian  vessels  six  weeks'  time  to 
leave  their  ports  and  reach  their  destination.  In  many  cases 
treaties  have  given  additional  security  to  the  goods,  claims  and 
persons  of  enemies'  subjects  so  situated.  The  treaty  of  1795, 
between  the  United  States  and  Great  Britain,  commonly  called 
Jay'ftroni  its  negotiator,  declared  it  to  be  unjust  and  impolitic 
to  confiscate  debts  due  to  the  subjects  of  a  nation  that  has  be 
come  hostile.f  It  was  also  stipulated  in  this  instrument,  that 
the  citizens  of  either  power  might  remain  unmolested  during 
war,  in  the  dominions  of  the  other,  so  long  as  they  should  be 
have  peaceably,  and  commit  no  offence  against  the  laws ;  and 
that,  if  either  government  desired  their  removal,  twelve 
months'  notice  should  be  given  them  to  this  effect.  Of  treaties 
containing  similar  provisions,  "  a  list  lies  before  me,"  says  Mr 
Manning,  "  too  long  for  insertion,  but  even  the  Barbary  pow 
ers  have  in  a  great  number  of  instances  concluded  such  agree 
ments."  :f 

"With  regard  to  the  shares  held  by  a  government  or  its  sub 
jects  in  the  public  funds  of  another,  all  modern  authorities 
agree,  we  believe,  that  they  ought  to  be  safe  and  inviolate. 

*  Comp.  Kent,  I.  Lect.  3,  p.  59,  seq. 

f  In  Article  X.  it  is  provided,  that  "  neither  debts  due  from  individuals  of  one 
nation  to  individuals  of  the  other,  nor  shares  nor  money  which  they  may  have  in  the 
public  funds  or  in  the  public  or  private  banks,  shall  ever,  in  any  event  of  war  or 
national  difference,  be  sequestered  or  confiscated ;  it  being  unjust  and  impolitic  that 
debts  and  engagements,  contracted  and  made  by  individuals,  having  confidence  in 
each  other  and  in  their  respective  governments,  should  ever  be  destroyed  by  national 
authority  on  account  of  national  differences  and  discontents." 

t  Comment,  p.  126. 


202  EIGHTS    OF    SELF-DEFENCE  §  118 

To  confiscate  either  principal  or  interest  would  be  a  breach  of 
good  faith,  would  injure  the  credit  of  a  nation  and  of  its  public 
securities,  and  would  provoke  retaliation  on  the  property  of  its 
private  citizens.  "  The  Emperor  Napoleon  I.  during  his  stay 
at  Posen,  imagining  that  the  cabinet  of  London  had  the  inten 
tion  of  confiscating  stock  in  the  public  debt  belonging  to 
Frenchmen,  ordered  his  minister  of  finance  to  examine  whether, 
in  case  they  should  so  act,  it  would  not  be  necessary  to  have 
recourse  to  the  same  rigor.  The  matter  is  a  very  delicate  one, 
said  he ;  I  am  not  willing  to  set  the  example,  but  if  the  English 
do  so,  I  ought  to  make  reprisals.  M.  Mollien  replied  that 
such  an  act  was  so  contrary  to  English  policy,  that  he  could 
not  believe  it,  that  he  washed  the  cabinet  of  London  would 
commit  such  a  mistake,  but  that  its  results  would  be  the  more 
disastrous  for  them,  if  it  were  not  imitated.  On  this  ocfcsion 
he  sent  to  the  Emperor  the  memoir  of  Hamilton,*  the  friend, 
counsellor,  and  minister  of  Washington,  on  the  question 
whether  the  political,  more  even  than  the  moral  rule,  did  not 
forbid  every  government,  not  only  to  confiscate  capital  which 
had  been  lent  to  it  by  the  subjects  of  a  power  with  which  it 
was  at  war,  but  even  to  suspend,  as  far  as  they  were  concerned, 
the  payment  of  interest.  Napoleon  did  not  insist  further  on 
the  matter."  f 

"We  close  this  subject  with  referring  to  some  of  the  opinions 
which  text  writers  have  expressed  on  the  several  points  consid 
ered.  As  for  immovable  property  in  an  enemy's  country 
Bynkershoek  says,  that  in  strict  justice  it  can  be  sold  and  con 
fiscated,  "  ut  in  mobilibus  obtinet,"  but  he  a'dds  that  it  is  a 
general  usage  throughout  Europe  for  the  rents  to  go  to  the 
public  treasury  during  war,  but  for  the  property  itself  after  the 
war  to  revert  "  ex  pactis  "  to  the  former  owner.  (Qusest.  Jur. 
Publ.  I.  7.)  As  for  other  property,  except  debts,  all  jurists 
hold  the  same  doctrine  of  its  liability  to  confiscation.  (Comp. 

*  Probably  the  letters  of  Camillus.     See  the  note  at  the  end  of  this  section. 

f  From  a  biography  of  Count  Mollien,  contributed  by  Michel  Chevalier  to  the 
Revue  des  deux  mondes,  hi  the  year  1856,  cited  by  Verge  on  de  Martens,  §  258,  ed. 
of  1858. 


§  118  AND    REDRESS    OF    INJURIES,    ETC.  203 

Manning,  p.  127.)  As  for  debts,  even  Grotius  decided  that 
"  hsec  non  belli  jure  qusesita  sed  bello  tantum  exigi  vetita." 
But  Bynkershoek  (u.  s.),  wliile  be  mentions  tbat  tbe  rigbt  to 
confiscate  them  had  been  questioned,  adds,  "  sed  videtur  esse 
jus  commune  ut  et  actiones  publicentur,  ex  eadem  nempe 
ratione  qua  corporalia  quselibet.  Actiones  utique  sive  credita 
non  minus,  jure  gentium,  sunt  in  dominio  nostro  quam  alia 
bona ;  eccur  igitur  in  his  jus  belli  sequamur,  in  aliis  non  sequa- 
mur."  There  must,  however,  be  actual  confiscation.  "  If 
the  sovereign," — Bynkershoek  goes  on  to  say, — "  has  exacted 
debts  due  to  enemies  from  his  subjects,  they  are  duly  paid,  but 
if  not,  at  peace  the  creditor's  former  right  revives,  because 
occupation  in  war  consists  rather  in  fact  than  in  jural  power. 
Debts,  therefore,  if  not  confiscated,  in  time  of  war  suffer  a 
temporary  suspension,  but  upon  peace  return  by  a  sort  of  post- 
liminy  to  their  old  owner."  Accordingly,  he  adds,  that  trea 
ties  often  provide  for  the  non-payment  to  the  creditor  of  con 
fiscated  debts.  Vattel  takes  the  same  ground  as  to  debts,  but 
adds  that  all  the  sovereigns  of  Europe  have  departed  from  this 
rigor,  and,  as  the  usage  has  altered,  he  who  should  act  contrary 
to  it,  would  injure  the  public  faith.  (B.  III.  5,  §  77.)  Mr. 
Manning  says  that  "  debts  due  from  individuals  to  the  enemy 
may  be  confiscated  by  the  rigorous  application  of  the  rights  of 
war — but  the  exercise  of  this  right  has  been  discontinued  in 
modern  warfare ; — and  it  may  be  regarded  as  established,  that 
though  debts  cannot  be  claimed  by  an  enemy  during  war,  yet 
that  the  right  to  claim  payment  revives  on  the  "return  of 
peace."  (pp.  129,  130.)  Dr.  Wheaton  says  that  for  nearly  a 
century  and  a  half  previous  to  the  French  revolution  no  in 
stance  of  confiscation  of  debts  had  occurred,  writh  the  simple 
exception  of  the  Silesian  loan  in  1753.  And  he  sums  up  his 
view  of  international  law  on  this  point  in  the  words,  that  prop 
erty  of  the  enemy  found  within  the  territory  of  the  belligerent 
state,  or  debts  due  to  his  subjects  by  the  government  or  indivi 
duals,  at  the  commencement  of  hostilities,  are  not  liable  to  be 
seized  and  confiscated  as  a  prize  of  war.  This  rule,  he  adds, 
is  frequently  enforced  by  treaty-stipulations,  but  unless  it  be 


204:  EIGHTS    OF    SELF-DEFENCE  §  119 

tlms  enforced,  it  cannot  be  considered  as  an  inflexible,  though 
an  established  rule.  (El.  IY.  I.  345-347.) 

Finally,  as  to  public  debts  due  to  individual  subjects  of  the 
enemy,  I  will  cite  but  the  single  authority  of  Mr.  Manning : 
"  One  description  of  property  is  invariably  respected  during 
war,  namely  the  sums  due  from  the  state  to  the  enemy,  such 
as  the  property  which  the  latter  may  possess  in  the  public 
funds.  This  is  justly  regarded  as  entrusted  to  the  faith  of  the 
nation ;  and  during  the  most  bitter  animosity  of  our  wars  with 
France  no  attempt  has  been  made  on  either  side  to  confiscate 
such  property,  which  cannot  be  touched  without  a  violation 
of  public  faith."* 

§119. 

If  each  and  all  on  the  one  side  were  enemies  to  each  and 

Have  aii  in  each  a^  on  ^ne  °ther,  it  would  seem  that  every  person 

rightleto  cairy  on  na(i  a  r^gntj  so  ^ar  as  the  municipal  code  did  not 

forbid,  to  fall  upon  his  enemy  wherever  he  could 

find  him,  that,  for  instance,  an  invading  army  had  a  right  to 

*  In  the  letters  of  Camillus,  written  by  Alexander  Hamilton  just  after  Jay's 
treaty  in  1795,  this  subject  is  considered  at  length,  particularly  in  letters  18-20. 
(Works,  vol.  VII.)  In  letter  19,  he  examines  the  right  to  confiscate  or  sequestrate 
private  debts  or  property  on  the  ground  of  reason  and  principle.  He  admits  at  the 
outset  the  proposition  that  every  individual  of  the  nation  with  whom  we  are  at  war 
is  our  enemy,  and  his  property  liable  to  capture.  To  this  there  is  one  admitted 
exception  respecting  enemy's  property  in  a  neutral  state,  but  this  is  owing  to  the 
right  of  the  neutral  nation  alone.  Reason,  he  maintains,  "  suggests  another  excep 
tion.  Whenever  a  government  grants  permission  to  foreigners  to  acquire  property 
within  its  territories,  or  to  bring  and  deposit  it  there,  it  tacitly  promises  protection 
and  security." — "  The  property  of  a  foreigner  placed  in  another  country,  by  permis 
sion  of  its  laws,  may  justly  be  regarded  as  a  deposit  of  which  the  society  is  a  trustee. 
How  can  it  be  reconciled  with  the  idea  of  a  trust,  to  take  the  property  from  its  owner 
when  he  has  personally  given  no  cause  for  the  deprivation  ?  "  Goods  of  enemies 
found  elsewhere  differ  from  those  which  are  in  our  country,  since  in  the  latter  case 
there  is  a  reliance  on  our  hospitality  and  justice.  And  the  same  argument  which 
would  confiscate  the  goods  would  seize  the  persons  of  enemies'  subjects.  The  case 
of  property  in  the  public  funds  is  still  stron  er  than  that  of  private  debts. 

The  result  which  Hamilton  reaches  is  sound,  but  if  we  admit  the  principle  that 
every  individual  belonging  to  the  belligerent  nation  is  an  enemy,  and  every  enemy's 
property  liable  to  capture,  we  must  deny  the  validity  of  exceptions,  unless  treaty  or 
usage  has  established  them.  The  foreigner  brought  his  property  here,  it  can  at  once 
be  said,  knowing  the  risk  he  might  run  hi  the  event  of  a  war.  Why  should  he  not 


§120  AND    REDRESS    OF    INJURIES,   ETC.  205 

seize  on  all  the  property  and  persons  within  reach,  and  dispose 
of  them  at  discretion.  But  no  such  unlimited  enmity  is  now 
known  in  the  usages  of  nations.  It  is  to  be  hoped  that  the 
theory  from  which  such  consequences  flow  will  be  abandoned 
and  disappear  altogether.  The  true  theory  seems  to  be  that 
the  private  persons  on  each  side  are  not  fully  in  hostile  rela 
tions  but  in  a  state  of  non-intercourse,  in  a  state  wherein  the 
rights  of  intercourse,  only  secured  by  treaty  and  not  derived 
from  natural  right,  are  suspended  or  have  ceased  ;  while  the 
political  bodies  to  which  they  belong  are  at  war  with  one 
another,  and  they  only.  Of  course  until  these  political  bodies 
allow  hostile  acts  to  be  performed,  such  acts,  save  in  self- 
defence,  may  not  be  performed  ;  and  accordingly  the  usages 
of  war  visit  with  severity  those  who  fight  without  a  sanction 
from  their  governments.  The  plunder  which  such  persons 
seize  belongs  not  to  themselves  but  to  the  public,  until  public 
authority  gives  them  a  share  in  it. 

§120. 

There  has  long  been  a  difference  between  the  treatment  of 
enemies'  property  —  including  in   this   term  the 
property  of  individual  subjects  of  the  hostile  state  miea'  property  on 

r   ,    J  ,  J  ...  land  and  eea. 

—  on  land  and  on  the  sea,  or  more  generally  be 
tween  such  as  falls  within  the  power  of  invading  armies,  and 
such  on  the  sea  and  along  the  coast,  as  falls  within  the  power 
of  armed  vessels.  The  former,  as  we  shall  see  when  we  come 
anon  to  consider  the  laws  and  usages  of  warfare,  is  to  a  certain 
extent  protected.  The  latter,  owing  to  the  jealous  feelings  of 
commercial  rivalship,  hardened  into  a  system  by  admiralty 
courts,  has  been  extensively  regarded  as  lawful  prey.  We 
must,  however,  admit  that  there  is  some  pretence  of  reason  for 
this  difference  of  practice  upon  the  two  elements. 


incur  the  risk  ?  He  should  incur  it,  say  the  older  practice,  and  the  older  authorities. 
He  should  not,  says  the  modern  practice,  although  international  law  in  its  rigor  in 
volves  him  in  it.  He  should  not,  according  to  the  true  principle  of  justice,  because 
Ms  relation  to  the  state  at  war  is  not  the  same  with  the  relation  of  his  sovereign  or 
government  :  because,  in  short,  he  is  not  in  the  full  sense  an  enemy. 


206  RIGHTS    OF    SELF-DEFENCE  §121 

an  enemy's  intercourse  with  other  states  by  sea  more  directly 
increases  his  capacity  to  sustain  and  protract  the  war.  And 
secondly,  there  is  a  difference  on  the  score  of  humanity  between 
land  and  maritime  capture.  On  the  land,  interference  with 
private  property,  by  stripping  families  of  their  all,  is  often  the 
source  of  the  deepest  misery.  It  also  embitters  feeling,  and 
drives  non-combatants  into  guerilla  warfare  or  into  the  regular 
service.  Invasion  always  arouses  a  national  spirit ;  but  inva 
sion  with  plunder  rather  defeats  the  end  of  war  than  promotes 
it,  until  a  nation  is  bowed  down  to  the  dust.  And  at  that 
point  of  time  it  disables  the  conquered  from  giving  the  com 
pensation  for  which  the  war  was  set  on  foot.  But  capture  on 
the  sea  is  effected  for  the  most  part  without  much  fighting ;  it 
rather  deprives  the  foe  of  his  comforts  and  means  of  exchang 
ing  his  superfluities  than  destroys  the  necessaries  of  life ;  and 
it  afflicts  more  directly  the  classes  which  have  some  influence 
upon  the  government,  as  well  as  the  resources  of  the  govern 
ment  itself,  than  the  day-laborer  and  the  cultivator  of  the  soil, 
who  have  special  claims  to  be  humanely  treated. 

§121. 

On  the  land,  in  addition  to  standing  armies,  a  militia  and 
Forces  employed  volunteers,  often  commanded  by  regular  officers, 
on  Til?  2u!0pX  nave  been  employed  in  carrying  on  war,  especial 
ly  in  national  defence.  As  the  different  military 
corps  are  frequently  united  in  their  operations,  and  no  great 
harm  can  be  done  by  the  less  disciplined,  if  under  proper  of 
ficers,  to  employ  a  militia  or  volunteers  can  furnish  no  just 
ground  for  complaint.  On  the  sea  the  practice  of  commercial 
states  has  long  been  to  make  use  not  only  of  public  but  also  of 
private-armed  vessels  for  the  purpose  of  doing  injury  to  the 
enemy.  This  usage  in  Europe  runs  back  to  the  time  when 
permanent  public  navies  scarcely  existed ;  for  during  a  consid 
erable  part  of  the  middle  ages,  the  European  states  having 
small  fleets  or  none  at  all,  impressed  or  hired  merchant  vessels 
for  the  uses  of  war.  Private  persons  also  engaged  in  naval 
warfare  on  their  own  account,  employing  their  own  vessels 


§121  AND    REDRESS    OF    INJURIES,    ETC.  207 

either  at  the  public  expense — called  I&uyssers,  cruizers  by  the 
Dutch ;  or  at  their  own  expense — Kapers,  Vrybuyters^  cap 
tors,  free-plunderers, — or  hiring  a  public  vessel  with  a  crew 
and  outfit  of  their  own  ;  of  which  last  description  an  expedition 
undertaken  in  the  reign  of  Louis  XIY.  against  the  Portuguese 
at  Rio-Janeiro,  to  get  satisfaction  for  an  insult  on  a  French 
ambassador,  was  an  example.* 

A  private-armed  vessel  or  privateer  is  a  vessel  owned  and 
officered  by  private  persons,  but  acting  under  a  commission 
from  the  state,  usually  called  letters  of  marque.f  It  answers 
to  a  company  on  land  raised  and  commanded  by  private 
persons,  but  acting  under  rules  from  the  supreme  authority, 
rather  than  to  one  raised  and  acting  without  license,  which 
would  resemble  a  privateer  without  'commission.  The  com 
mission,  on  both  elements,  alone  gives  a  right  to  the  thing 
captured,  and  insures  good  treatment  from  the  enemy.  A 
private  vessel  levying  war  without  such  license,  although  not 
engaged  in  a  piratical  act,  would  fare  hardly  in  the  enemy's 
hands. 

The  right  to  employ  this  kind  of  extraordinary  naval  force 
is  unquestioned,  nor  is  it  at  all  against  the  usage  of  nations  in 
times  past  to  grant  commissions  even  to  grivateers  owned  by 
aliens.  The  advantages  of  employing  privateers  are  (1.)  that 
seamen  thrown  out  of  work  by  war  can  thus  gain  a  livelihood 
and  be  of  use  to  their  country.  (2.)  A  nation  which  maintains 
no  great  navy  is  thus  enabled  to  call  into  activity  a  temporary 
force,  on  brief  notice,  and  at  small  cost.  Thus  an  inferior 
state,  with  a  large  commercial  marine,  can  approach  on  the 
sea  nearer  to  an  equality  with  a  larger  rival,  having  a  power 
ful  fleet  at  its  disposal.  And  as  aggressions  are  likely  to  come 
from  large  powers,  privateering  may  be  a  means,  and  perhaps 
the  only  effectual  means,  of  obtaining  justice  to  which  a  small 
commercial  state  can  resort. 


*  Bynkersh.  Quaest.  J.  P.  I.  18  ;  Ortolan,  II.  52.  Martens :  les  Arraateurs,  Chap.  I. 
f  From  the  signification,  border,  the  marches,  it  is  said.     Letters  of  license  to  go 
across  the  boundary  and  make  reprisals. 


208  RIGHTS    OF    SELF-DEFENCE  §  122 

§122. 

On  the  other  hand,  the  system  of  privateering  is  attended 


Evils  of  privateer-    witn  V617   g1*68*    evils*       (!•)    Tne   ^Otive    IS   plun- 

der.  It  is  nearly  impossible  that  the  feeling  of 
honor  and  regard  for  professional  reputation  should  act  upon 
the  privateersman's  mind.  And  when  his  occupation  on  the 
sea  is  ended,  he  returns  with  something  of  the  spirit  of  a  rob 
ber  to  infest  society.  (2.)  The  control  over  such  crews  is  slight, 
while  they  need  great  control.  They  are  made  up  of  bold, 
lawless  men,  and  '  are  where  no  superior  authority  can  watch 
or  direct  them.  The  responsibility  at  the  best  can  only  be 
remote.  The  officers  will  not  be  apt  to  be  men  of  the  same 
training  with  the  commanders  of  public  ships,  and  cannot 
govern  their  crews  as  easily  as  the  masters  of  commercial 
vessels  can  govern  theirs.  (3.)  The  evils  are  heightened  when 
privateers  are  employed  in  the  execution  of  belligerent  rights 
against  neutrals,  where  a  high  degree  of  character  and  forbear 
ance  in  the  commanding  officer  is  of  especial  importance. 

Hence  many  have  felt  it  to  be  desirable  that  privateering 

should  be  placed  under  the  ban  of  international 

Testimony  to  the  r       ~  .  _ 

evils  of  privateer-  law,  and  the  leeling  is  on  the  increase,  in  our  age 
of  humanity,  that  the  system  ought  to  come  to  an 
end.  "We  cite  as  expressing  this  feeling  only  writers  belonging 
to  our  own  country.  Dr.  Franklin,  in  several  passages  of  his  • 
correspondence,  makes  decided  protests  against  it,  as  well  «  as 
against  the  spirit  of  plunder  in  which  it  originates.  "  The 
practice  of  robbing  merchants  on  the  high  seas,  a  remnant  of 
the  ancient  piracy,  though  it  may  be  accidentally  beneficial  to 
particular  persons,  is  far  from  being  profitable  to  all  engaged 
in  it,  or  to  the  nation  that  authorizes  it."  "  There  are  three 
employments  which  I  wish  the  law  of  nations  would  protect, 
so  that  they  should  never  be  molested  nor  interrupted  by  ene 
mies  even  in  times  of  war  ;  —  I  mean  farmers,  fishermen,  and 
^merchants."  In  some  observations  on  war,  he  pursues  this 
subject  of  the  evils  of  privateering,  at  great  length,  and  ends 
thus  :  "  There  is  then  the  national  loss  of  all  the  labor  of  so 
many  men  during  the  time  they  have  been  employed  in  rob- 


§122  AND    REDRESS    OF    INJURIES,    ETC.  209 

bing,  who,  besides,  spend  what  they  get  in  drunkenness  and 
debauchery,  lose  their  habits  of  industry,  are  rarely  fit  for  any 
sober  business  after  a  peace,  and  serve  only  to  increase  the, 
number  of  highwaymen  and  housebreakers."  * 

Privateering,  says  Chancellor  Kent,  "  under  all  the  restric 
tions  which  have  been  adopted,  is  very  liable  to  abuse.  The 
object  is  not  fame  or  chivalric  warfare,  but  plunder  and  profit. 
The  discipline  of  the  crews  is  not  apt  to  be  of  the  highest 
order,  and  privateers  are  often  guilty  of  enormous  excesses, 
and  become  the  scourges  of  neutral  commerce.  Under  the 
best  regulations  the  business  tends  strongly  to  blunt  the  sense 
of  private  right,  and  to  nourish  a  lawless  and  fierce  spirit  of 
rapacity."  f 

Dr.  Wheaton  says,  that  "  this  practice  has  been  justly  ar 
raigned,  as  liable  to  gross  abuses,  as  tending  to  encourage  a 
spirit  of  lawless  depredation,  and  as  being  in  glaring  contra 
diction  to  the  more  mitigated  modes  of  warfare  practised  by 
land."  $ 

Dr.  Franklin  expressed  his  feelings  in  regard  to  privateer 
ing,  in  fhe  treaty  of  1785,  between  the  United 

«.  n    T»  •  i  •    i      i          i  T        ,1   •       Endeavors  to  stop 

btates  and  Jrrussia,  wmcn  lie  drew  up.  In  tins  privateering  by 
treaty  it  was  provided  that  neither  of  the  contract 
ing  parties  should  grant  or  issue  any  commission  to  any  private 
armed  vessels,  against  the  other,  empowering  them  to  take  or 
destroy  its  trading  vessels,  or  to  interrupt  commerce.  On  the 
expiration  of  the  treaty  in  1799,  this  article  was  not  renewed. 
Another  article  of  the  same  temporary  treaty  deserves  mention, 
which  engages  that  all  merchant  vessels  of  either  party,  em 
ployed  in  regular  commerce,  shall  be  unmolested  by  the  other. 
But  before  this  treaty  with  Prussia,  an  unfulfilled  agreement 
had  been  made  between  Sweden  and  the  United  Provinces,  as 
early  as  1675,  to  terminate  this  practice.  Eussia,  in  1767  and 
the  following  years,  abstained  from  giving  commissions  of  this 
nature,  but  made  use  of  them  again  in  1770.  In  1792,  the 
French  legislative  assembly  agreed  to  suppress  privateering, 

*  Franklin's  Works,  edited  by  Sparks,  IX.  41,  467. 
f  Kent,  I.  97,  Lect.  5.  J  El.  IV.  2,  §  10. 

14 


210  RIGHTS    OF    SELF-DEFENCE  §  122 

but  the  revolution  soon  made  this  a  dead  letter.*  After  the 
French  revolution,  although  privateering  continued  to  receive 
the  sanction  of  the  nations,  some  few  voices  were  lifted  up 
against  it,  and  even  aga.inst  all  capture  of  merchant  vessels 
pursuing  a  lawful  trade.  Thus  the  reviewer  of  a  pamphlet, 
entitled  "  War  in  Disguisu  "  (Edinburgh  Eev.,  No.  15,  p.  14), 
says  :  "  We  cannot  help  thinking  that  the  practice  of  maritime 
capture  is  inconsistent  with  the  generous  and  enlightened 
notions  of  public  hostility  which  were  brought  to  maturity  in 
the  last  century,  and  that  it  is  a  stain  upon  that  lenient  and 
refined  system  of  policy,  by  which  the  history  of  modern  Eu 
rope  is  distinguished  from  that  of  the  rest  of  the  world." 

The  most  important  step  towards  the  entire  abolition  of ' 
Treaty  of  Paris  in  privateering  has  been  very  recently  taken.  The 
powers  which  concluded  the  treaty  of  1856,  at 
Paris,  united  in  a  declaration,  by  the  first  article  of  which 
"privateering  is  and  remains  abolished."  (Comp.  §  175.) 
Other  states  were  invited  to  adopt  the  principles  of  this  decla 
ration,  but  it  was  agreed  that  they  must  be  accepted  as  a  whole 
or  not  at  all. 

The  United  States,  among  other  states,  were  invited  to 
Attitude  of  the  become  a  party  to  this  declaration.     The  secre- 

United  States.          tarv  of  ^^  Mr    ^arcy,  Jn    a   letter    of  J^y    28, 

1856,  addressed  to  M.  de  Sartiges,  minister  of  France  at  Wash 
ington,  declined  the  proposal,  although  it  secured  what  this 
country  had  so  long  been  washing  for,  the  greater  freedom  of 
neutral  vessels.  The  reluctance  to  adopt  the  principles  of  the 
declaration,  was  owing  to  a  cause  already  suggested, — that  the 
relinquishment  of  privateering  would  be  a  gain  to  nations, 
which  keep  on  foot  a  large  naval  force,  but  not  to  the  United 
States,  where  a  powerful  navy  is  not  maintained,  on  account 
of  its  great  cost,  and  its  danger  to  civil  liberty.  On  the  break 
ing  out  of  a  war,  therefore,  with  a  nation  powerful  at  sea,  the 
United  States  must  rely,  to  a  considerable  extent,  on  merchant 
vessels  converted  into  vessels  of  war.  The  secretary,  however, 
declares  that  our  government  will  readily  agree  to  an  arrange- 

*  Kent,  I.  98 ;  Ortolan,  II.  54. 


§123  AND    REDRESS    OF    INJURIES,    ETC. 

ment,  by  which  the  private  property  of  the  subjects  or  citizens 
of  a  belligerent  power  shall  be  exempted  from  seizure  by  public 
armed  vessels  of  the  enemy,  except  it  be  contraband  of  war, 
and  that  "  with  this  we  will  consent  to  the  placing  of  privateer- 
.ing  tinder  the  ban  of  the  law  of  nations."  It  will  be  the  policy 
of  our  government,  hereafter,  it  may  be  presumed,  in  all 
treaties,  to  couple  the  abolition  of  privateering  with  the  entire 
immunity  of  merchant  ships  engaged  in  a  lawful  trade.* 
(Comp.  §  175.) 

§  123. 

The  restrictions  on  privateering  are  of  three  kinds. 
1.  The  laws  of  some  states  narrow  the  range 

,,  , ,      .  . .  ,  i    j.      a/i  'j.*          Restrictions  on 

of  their  operations,  and  regulate  the  composition  privateering  to 

,,  . ,      .  mi  .p     -i  •  j  i  •  prevent  its  evils. 

of  their  crews.     They  are  forbidden  to  cruise  in 
the  rivers  or  within  the  sea-line  of  a  hostile  state,  and  the  ma 
jority  of  a  crew  is  required  to  consist  of  natives,  f     But  these 
rules  have  not  passed  into  international  law,  or  general  usage. 

*  The  annotator  on  de  Martens,  ed.  of  1858,  M.  Verge,  in  speaking  of  this  prop 
osition  of  our  government,  expresses  himself  as  follows  :  "  In  the  usages  of  war  on 
laud,  the  soldiers  of  belligerent  powers  have  no  right,  and  can,  in  the  way  of  fact, 
exercise  no  control  over  the  private  property  of  the  subjects  of  the  hostile  power. 
Why  should  not  the  same  principles  be  applicable  to  maritime  war  ?  The  additional 
proposition  of  the  cabinet  of  Washington,  is  evidently  logical.  Vainly  has  it  <been 
contended  (in  the  Journal  des  Debats  of  October  22,  1856)  that  the  claim  of  the 
United  States,  that  land  and  sea  warfare  should  fee  put  on  the  same  footing,  is  not 
admissible,  nor  just,  nor  good  even,  since  the  calamities  of  war  afford  this  advan 
tage,  that  in  acting  on  the  population  of  countries,  they  render  war  shorter  a/nd 
more  unfrequent.  It  seems  in  all  cases  difficult  to  maintain  the  proposition  that  the 
pillage  of  private  property  by  privateers  is  just,  rational,  and  legitimate.  One  can 
not  admit  that  private  property,  which  is  free  even  in  the  enemy's  land  itself,  on  the 
soil  invaded  by  an  army  victorious,  and  invested  with  the  right  of  conquest,  can  be 
justly  taken  and  plundered  on  the  sea,  on  that  element  free  by  its  nature,  which  is 
neither  friendly  nor  hostile  territory.  Let  us  hope  that  the  initiative  so  gloriously 
adopted  by  the  congress  of  Paris,  will  be  fruitful  for  the  future,  and  that  diplomacy 
will  one  day  reach  the  point  of  rendering  commerce  free  for  belligerents  as  for  neu 
trals,  that  private  goods  and  citizens,  who  are  strangers  to  the  profession  of  arms, 
will  be  freed  from  the  disasters  of  war,  and  that  private  property  will  remain  out 
side  of  contests  exclusively  concentrated  in  armies  acting  in  the  name  and  under 
the  direction  of  the  public  power."  II.  §  289.  Comp.  the  recent  resolutions  of  the 
chamber  of  commerce,  of  Hamburg  and  Bremen,  under  §  139. 

f  Comp.  Ortolan,  II.  57-59  ;  Heffter,  §  137. 


212  RIGHTS    OF    SELF-DEFENCE  §124 

2.  To  give  it  the  character  of  an  honest  and  lawful  pursuit, 
commissions,  as  already  said,  are  granted,  and  bonds  are  taken 
from  those  who  receive  the  letters  of  marque.     These  regula 
tions,  which  vary  with  the  municipal  law  of  each  country, 
subject  the  owners  and  officers  of  privateers  to  heavy  penalties 
in  case  of  transgression.* 

It  is  only  the  commission  which  gives  an  interest  in  a  prize, 
since  all  captures  vest  originally  in  the  state.  This  maxim 
draws  its  truth  from  the  right  notion  of  war,  as  we  have  en 
deavored  to  set  it  forth, — that  war  is  undertaken  by  the  state, 
for  the  sake  of  the  state,  and  against  another  state. 

3.  Many  treaties  provide  that  the  subjects  of  either  of  the 
treaty-making  powers,  while  in  a  state  of  peace,  shall  not  take 
out  letters  of  marque  from  a  third  power  at  war  with  the  other 
party,  and  that  those  who  violate  this  provision  may  be  held 
by  the  other  party  to  have  committed  the  crime  of  piracy. 
Such  treaties  of  longer  or  shorter  duration  have  been  made,  for 
instance,  by  the  United  States,  with  France,  Sweden,  Prussia, 
Great  Britain,  Spain,  Central  America,  and  Colombia.     In  the 
absence  of  such  treaties,  a  neutral  may  with  impunity  accept  a 
military  commission  from  a  belligerent,  for  sea  or  land  service. 
But  municipal  law  often  forbids  the  citizen  or  subject  to  take 
this  step.  (Comp.  §  162,  §  165.) 


SECTION  II. — Laws  and  Usages  of  War,  especially  on  Land. 

§124. 

The  subject  of  prize,  or  the  rules  of  captured  property,  f 

The  laws  and  us-  especially  on  the  sea,  we  shall  consider  by  itself 

in  another  section.     At  present  we  pass  on  to  the 

*  For  the  rules  of  responsibility  of  owners,  commanders,  and  sureties,  Comp. 
Kent,  I.  98,  99,  Lect.  V.  A  maritime  ordinance  of  Pedro  IV.,  king  of  Aragon  in 
1356,  speaks  of  such  security.  A  sum  of  money  was  to  be  deposited  in  the  hands 
t)f  certain  public  officers  by  the  owner  of  a  vessel.  Pardessus,  Collection,  V.  471. 
And  another  rule  of  1364,  passed  by  the  German  Hanse  towns,  to  the  same  effect,  is 
cited  by  de  Martens,  §  289,  note  c. 

f  Comp.  for  this  section,  the  instructions  for  the  government  of  armies  of  the 


§124  AND    REDRESS    OF    INJURIES,    ETC.  213 

important  topic  of  the  laws  and  usages  of  war.     These  rules 
are  necessarily  somewhat  vague  and  fluctuating,  are  eomewliat 
partly  because  they  have  less  to  do  with  justice  vague> 
than  with  humanity,  where  clear  lines  of  definition  are  want 
ing  ;  partly  because  much  must  be  left  to  the  discretion  of 
commanders  with  varying  dispositions  and  principles ;  partly 
because  nations  sometimes  enter  with  excited  passions,  some 
times  with  cool  calculation,  into  war,  and  their  spirit  will 
modify  all  its  movements. 

Notwithstanding  this  vagueness,  the  rules   of  war  have 
grown  in  humanity  and  mildness  in  recent  times. 

mi  •       •       i  f?^  •  v  yet  are  improving. 

ine  principal  causes  01  tins  amelioration  are, 

1.  .The  growth  of  a  feeling  of  the  brotherhood  of  mankind, 
fostered  by  the  spirit  of  Christianity.     Thus,  for  CaUBes  of   tbeir 
instance,   slavery  having    ceased  in   nearly   all  amelloratlon- 
Christian  countries  under  the  benign  sway  of  the  Gospel,  how 
could  the  old  practice  of  enslaving  captives  taken  in  war  fail 
to  go  out  of  use  ? 

2.  The  influence  of  writers  such  as  Grotius,  and  the  ex 
ample  of  great  captains,  who  under  the  control  of  humane  feel 
ings  have  followed  a  better  practice. 

3.  The    greatly   increased    intercourse    among    Christian 
countries,  the  inhabitants  of  which  are  no  longer  strangers  to 
one  another,  and  beyond  each  other's  view ;  but  are  connected 
by  various  ties,  w^hich  soften  the  asperity  of  a  sense  of  injury. 

4.  The  marked  separation  of  the  soldiery  as  a  distinct  class 
from  the  citizens,  and  an  improved  feeling  among  soldiers 
themselves,  which  is  due  to  the  substitution  of  regular  for 
irregular  troops,  to  the  spread  of  professional  honor  among 
officers,  and  to  the  cooler  and  more  scientific  way  in  which 
wars  are  carried  on. 

5.  Add  to  this  that  an  organized  commissariat  renders  it 
.unnecessary  for  the  soldier  to  procure  his  daily  food  by  plunder, 
while  modern  systems  of  finance  and  credit  meet  the  expenses 
of  armies  abroad.     "Paid  soldiers  only,"  says   Col.  Napier, 

United  States  in  the  field,  prepared  by  Dr.  Lieber,  revised  by  a  board  of  officers,  and 
approved  by  the  President  in  1863. 


214  RIGHTS    OF    SELF-DEFENCE  §  125 

"  can  be  kept  under  discipline  ;  soldiers  without  money  become 
robbers."  * 

6.  The  different  mode  of  warfare  which  the  use  of  gun 
powder  has  introduced.  "  There  is  as  much  difference,"  says 
the  same  authority,  "between  the  modern  and  the  ancient 
soldier,  as  between  the  sportsman  and  the  butcher.  The  an 
cient  warrior,  fighting  with  the  sword  and  reaping  his  harvest 
of  death  when  the  enemy  was  in  flight,  became  habituated  to 
the  act  of  slaying.  The  modern  soldier  seldom  uses  his  bay 
onet,  sees  not  his  peculiar  victim  fall,  and  exults  not  over 
mangled  limbs,  as  proofs  of  personal  prowess." 

§125. 
The  rules  which  lie  at  the  basis  of  a  humane  system  of 


Fundamental 

1..  That  peace  is  the  normal  state  of  Christian 
nations,  to  which  they  are  bound  to  seek  to  return  from  the 
temporary  and  exceptional  interruptions  of  war. 

2.  That  redress  of  injuries  and  not  conquest  or  plunder  is 
the  lawful  motive  in  war  ;  and  that  no  rule  of  morality  or 
justice  can  be  sacrificed  in  the  mode  of  warfare. 

3.  That  war  is  waged  between  governments  by  persons 
whom  they  authorize,  and  is  not  waged  against  the  passive 
inhabitants  of  a  country. 

4.  That  the  smallest  amount  of  injury,  consistent  w^ith  the 
sad  necessity  of  war,  is  to  be  inflicted.     And,  finally, 

5.  That  the  duties  implied  in  the  improved  usages  of  war, 
so  far  as  they  are  not  of  positive  obligation,  are  reciprocal,  like 
very  many  rules  of  intercourse  between  states,  so  as  not  to  be 
binding  on  one  belligerent,  as  long  as  they  are  violated  by  the 
other.     This  leads  u&  to  retaliation  in  war. 

§126. 

That  retaliation  in  war  is  sometimes  admissible  all  agree  : 
thus   if  one  belligerent   treats  prisoners  of  war 

Retaliation.         ,          •,  -,        ,n  ,-,  1,1  •/? 

harshly,  the  other  may  do  the  same  ;  or  if  one 
squeezes  the  expenses  of  war  out  of  an  invaded  territory,  the 

*  Penins.  War,  III.  377  (Amer.  ed.  of  1842.) 


£  127  AND    REDRESS    OF    INJURIES,    ETC. 

other  may  follow  in  his  steps.  It  thus  becomes  a  measure  of 
self-protection,  and  secures  the  greatest  amount  of  humanity 
from  unfeeling  military  officers.  But  there  is  a  limit  to  the 
rule.  If  one  general  kills  in  cold  blood  some  hundreds  of 
prisoners  who  embarrass  his  motions,  his  antagonistmay  not  be 
j  ustified  in  staining  himself  by  similar-  crime^,  nor  may  he  break 
his  word  or  oath  because  the  other  had  done  so  before.  The 
limits  of  such  retaliation  it  may  be  hard  to  lay  down.  Yet 
any  act  of  cruelty  to  the  innocent,  any  act,  especially,  by  which 
non-combatants  are  made  to  feel  the  stress  of  war,  is  what 
brave  men  shrink  from,  although  they  may  feel  obliged  to 
threaten  it.  (Comp.  §  114.  and  the  instructions,  for  the  gov 
ernment  of  our  armies,  §§  27,  28.) 

§127. 

The  use  of  poisoned  weapons,  the  poisoning  of  springs,  the 
employment  of  hired  assassins,  have  long  been  P.,rtlcuHr  ruleg 
condemned,  as  opposed  to  the  idea  of  war,  which  jJaJJJy  L  ^ap° 
is  an  open  honorable  way  of  seeking  redress.*  S^gtJ?^ 
Such  practices  characterize  savage  wurfare.  Gere-  my'8  PcrBOC*- 
tius  (III.  4,  §  17)  is  decided  in  condemning  the  practice  of 
poisoning  springs,  but  thinks  that  it  is  right  to  corrupt  water 
so  that  it  cannot  be  used,  which  is  no  worse  than  to  turn  the 
channel  of  a  stream  in  a  direction  where  the  enemy  cannot  get 
at  it.  He  says  also  (§  18),  that  whilst  hired  assassins  must 
never  be  used,  above  all  when  they  violate  express  or  implied 
confidence,  an  enemy  may  undertake  to  kill  another  in  a 
private  and  concealed  way.  This  he  supports  as  usual  by 
testimonies  from  Greek  and  Roman  writers.  Modern  times 
would  use  another  language.  Bynkershoek,  in>  1737,  falls 
below  the  standard  of  Grotius,  and  allows  ©f  fraud  to  any 

*  For  the  history  of  the  rules  of  war,  comp.  Mr.  Ward's  Hist.,  Chapters  IX., 
XV.,  and  elsewhere  ;  also  an  excellent  article  in  the  Oxford  essays  for  1856,  by  Mon 
tague  Bernard,  Esq.,  which  has  been  of  great  use  to  the  present  writer,  and  from 
which  the  passages  appearing  as  quotations  in  the  next  pages  are  taken.  See  also 
Gen.  Halleck's  Int.  Law  and  Laws  of  War,  Chap.  XVI.  This  work  of  the  learned 
military  officer  would  have  been  of  important  service  to  the  author  of  this  book,  i 
he  could  have  seen  it  sooner. 


216  RIGHTS    OF    SELF-DEFENCE  §  127 

extent  in  war.  "  Ego  omnem  dolum  permitto,  sola  perfidia 
excepta,  non  quod  contra  hostem  non  quodlibet  liceat,  sed  quod, 
fide  data,  quatenus  data  est,  hostis  esse  desinat,"  —  (Qusest.  J. 
P.  I.  1,)  —  opinions  which  it  gives  us  pain  to  cite  from  such  a 
writer.  The  Greeks,  Eomans,  and  some  other  states  of  anti 
quity,  professed  to  abhor  these  methods  of  fraud  in  carrying 
on  war.*  The  Emperor  Tiberius,  when  an  offer  was  made 
him  to  put  Arminius  out  of  the  way  by  poison,  rejected  it, 
although  he  committed  many  worse  crimes.  "  Non  fraude," 
Tacitus  makes  him  say,  (Annal.  II.  88,)  "  neque  occultis,  sed 
pa]  am  et  armatum  pbpulum  Eomanum  hostes  suos  ulcisci." 
The  spirit  of  chivalry  was  still  more  opposed  to  fraud  and 
secret  stratagem.  Enemies  often  gave  notice  of  an  intention 
to  make  an  attack  at  a  certain  time,  and  the  true  knight  reject 
ed  every  advantage,  save  that  which  his  skill  and  prowess  in 
knightly  warfare  afforded  him. 

The  laws  of  war  are  loose  in  regard  to  the  instruments  of 
2.  Allowable  wea-  death  used  against  an  enemy.  Formerly  chain- 
war?  J1  n  shot  and  red-hot  shot  were  objected  to,  but  they 

do  not  seem  to  be  now.  "Now  invention  racks  itself  to  pro 
duce  the  biggest  gun,  the  deadliest  projectile,  the  most  fright 
ful  engine  of  wholesale  slaughter,  and  the  shallows  of  Kertch 
and  Cronstadt  are  planted  thick  with  infernal  machines.  It  is 
possible  to  go  too  fast  and  too  far  in  this  direction."  f  What 
is  here  quoted  from  an  English  essay  written  a  few  years  since 
is  more  true  of  sea  warfare  than  of  land.  As  Heffter  remarks 
(§  119),  war  on  that  element  is  the  more  harsh  and  destructive. 
"  Its  maxims,  owing  to  a  want  of  the  proper  equipoise  between 
naval  powers,  have  been  far  from  reaching  the  same  level  of 
humanity  on  which  land-warfare  stands.  It  is  still  half  a  war 
of  plunder."  As  for  war  in  general,  Kliiber  (§  244)  lays  it 
down  that  the  customs  of  war  ("  Kriegsmanier  ")  condemn  not 
only  poisoned  weapons,  poisoning  of  wells  and  of  utensils,  at 
tempts  to  spread  the  plague  among  the  enemy,  but  also  the  use 


*  Comp.  Dionys.  Hal.  antiq.  III.  8,  ot'<5'  ex  rov  <j>av(pov  firtdft/rA  ri/J.u>,  o>s  6 
oi  TOV  iroXf/jiov  v6/j.os,  a\\'  v 
f  Montague  Bernard,  u.  s.,  p.  127. 


£127  AND    REDRESS    OF    INJURIES,    ETC.  217 

of  chain -shot  and  bar-shot  (boulets  a  frras),  shooting  bits  of  iron, 
brass,  nails,  etc.  (tirer  d  la  mitraille).  The  loading  of  muskets 
with  two  balls,  with  jagged  balls,  or  with  balls  mixed  with 
glass  or  lime,  he  also  holds,  somewhat  too  broadly,  to  be  for 
bidden.  Special  treaties  have  prohibited  as  between  the  par 
ties  the  use  of  chain,  bar,  and  hot  shot,  as  well  as  of  pitch- 
rings  (cercles  poisses).  An  infernal  machine  invented  about 
the  year  1585,  which  was  a  kind  of  fire  ship,  was  disapproved 
of  by  some,  but  went  out  of  use  because  it  did  not  do  its  work 
well. 

On  the  whole,  it  may  be  said  that  weapons  whose  efficiency 
consists  simply  in  inflicting  ,  a  bad  wound,  and  instruments  of 
wholesale  slaughter  which  cannot  be  foreseen  or  avoided  by 
flight,  are  against  the  customs  of  most  kinds  of  warfare ;  but 
that  naval  warfare  too  much,  and  sieges,  of  necessity,  make  use 
of  summary  and  wholesale  means  of  death.  Naval  warfare  is 
the  storming  of  one  floating  fortress  by  another,  but  its  laws 
need  not  be  altogether  assimilated  to  the  storming  of  fortified 
places  on  the  land. 

Hitherto  the  practice  of  using  barbarians  in  the  wars  of 
Christian  nations  with  one  another,  has  not  been  K1nd  of  troops 
absolutely  condemned  by  the  law  of  nations.  The  emP]°yed- 
French  used  the  American  Indians  against  the  English  in 
America,  and  the  Turcos,  a  force  made  up  of  Algerines,  Ka- 
byles,  and  Negroes,  in  Italy ;  the  English  employed  savages 
against  their  revolted  colonies,  in  spite  of  the  rebukes  of  Lord 
Chatham ;  and  the  Russians  brought  Circassians  with  them 
into  Hungary  in  the  war  following  1848.  But  nothing  is 
clearer  than  that  troops  who  are  accustomed  to  an  inhuman 
mode  of  warfare,  and  belong  to  a  savage  race,  cannot  be 
trusted  to  wage  war  according  to  the  spirit  of  humanity,  and 
ought  not  to  be  employed. 

Breach  of  faith  between  enemies  has  always  been  strongly 
condemned,  and  that  vindication  of  it  is  worth- 

.  ,.,..,  .  ,  3.  Breach  of  faith : 

less  wincn  maintains  that,  without  an  express  or  solicitations  to 

crime. 

tacit  promise  to  our  enemy,  we  are  not  bound  to 

keep  faith  with  him.     But  no  rule  of  war  forbids  a  commander 


218  RIGHTS    OF    SELF-DEFENCE  §  128 

to  circulate  false  information,  and  to  use  means  for  deceiving 
his  enemy  with  regard  to  his  movements.  If  he  abstains  from 
them,  he  must  do  so  by  the  force  of  his  own  Christian  con 
science.  To  lead  the  officers,  counsellors,  or  troops  of  an  en 
emy  to  treachery  by  bribes,  or  to  seduce  his  subjects  to  betray 
their  country,  are  temptations  to  commit  a  plain  crime,  which 
no  hostile  relation  will  justify.*  Yet  to  accept  of  the  services 
of  a  traitor  is  allowable,  f 

§128. 

A  combatant  is  any  person  directly  engaged  in  carrying  on 
war,  or  concerned  in  the  belligerent  government,  or  present 
with  its  armies  and  assisting  them ;  although  those  who  are 
present  for  purposes  of  humanity  and  religion, — as  surgeons, 
nurses,  and  chaplains — are  usually  classed  among  non-combat 
ants,  unless  special  reasons  require  an  opposite  treatment  of 
them.  The  ancient  rule  was,  that  a  combatant  taken  in  battle 
became  the  property  of  his  captor,  who  could 

4.  Treatment      of  n  i   •  ~ry  1  •     J      # 

captured  persons,  kill,  enslave,  or  sell  him.     Kansom  was  a  kind.  01 

esp.  of  soldiers.  1  .  . 

sale  to  those  who  were  most  interested  m  paying 
a  high  price.  Among  the  Greeks  the  general  practice  was  not 
to  refuse  quarter  to  a  Greek  who  gave  himself  up  on  the  field 
of  battle,  and  to  allow  his  friends  to  redeem  him,  if  they 
would ;  the  price  for  which  was  more  or  less  fixed  between 
contending  parties.  This  usage  prevailed  also  among  the 
Eomans,  as  well  as  that  of  exchanging  prisoners,  but  any  de 
gree  of  injury  to  the  enemy  was  allowed  in  their  jus  belli. 
Neither  law,  nor  the  feelings  of  humanity,  nor  aught  save  con 
siderations  of  prudence,  restrained  them.  After  the  disaster 
in  the  Caudine  Forks,  when  they  gained  their  next  victory 
over  the  Samnites,  they  slew  alike  the  resisting  and  the 
unresisting,  armed  and  unarmed,  slaves  and  free,  boys  and 
adults,  men  and  cattle,  nor  would  any  living  thing  have  been  left 
alive,  unless  the  consul  had  given  the  signal  for  withdrawing. 

*  A  qualification  is  here  necessary,  that  when  a  nation  has  been  conquered  and  is 
under  a  usurper's  sway,  and  in  similar  cases,  it  cannot  be  wrong  for  those  who  are 
engaged  in  a  war  of  liberation  to  lead  the  people  to  revolt. 

f  Vattel,  III.  10,  §§  180,  181. 


§  128  AND    REDRESS    OF    INJURIES,    ETC.  219 

(Livy,  IX.  14.)  By  the  rules  of  both  nations  leading  officers 
of  the  hostile  army,  after  being  taken,  might  be  put  to  the 
sword.  Such  was  the  case  with  the  Athenian  generals  taken 
at  Syracuse,  (Thucyd.  YII.  86,) — against  the  will,  however,  it 
should  be  added,  of  the  Spartan  general  Gylippus, — and  many 
an  illustrious  warrior,  taken  captive  by  the  Romans,  had  his 
death  delayed,  only  to  endure  the  humiliation  of  being  led  in 
triumph.  Similar  cruelty  was  universal  in  ancient  times,  as 
among  the  Jews,  where  David's  campaigns  dealt  death  in 
frightful  forms  upon  surrounding  nations ;  and  yet,  a  century 
and  a  half  after  David,  a  prophet,  to  the  king  of  Israel's  inquiry, 
"  Shall  I  smite  them  ? "  could*  answer,  "  Wouldst  thou  smite 
those  whom  thou  hast  taken  captive  with  thy  sword  and  thy 
bow  ? " — showing  that  a  more  humane  mode  of  warfare  was 
then  in  vogue. 

War  put  on  all  its  horrors  in  the  invasions  of  the  empire 
by  the  Germans.  Then  came  the  times  of  feudalism  and 
knighthood,  when  many  mitigations  of  the  barbarian  practice 
grew  up.  Captives,  in  wars  between  Christians,  were  ran 
somed  and  sometimes  released  on  parole  to  raise  the  money 
necessary  for  this  purpose.  But  the  common  soldier  did  not 
receive  much  benefit  from  the  relaxation  of  the  old  severities. 
During  the  wars  just  before  the  reformation,  especially  those 
of  the  French  invasions  of  Italy,  the  cruelties  of  war  seemed 
to  revive,  and  the  religious  animosities  of  the  century  and  a 
half  afterwards  did  not  extinguish  them.  In  the  thirty  years' 
war  Gustavus  Adolphus  made  a  convention  with  the  Imperial 
ists  to  give  and  receive  quarter :  only  the  Croats  on  one  side, 
and  the  Pomeranians  on  the  other,  were  excepted  from  this  act 
of  humanity.  In  the  wars  of  England  between  the  king  and 
the  parliament  no  quarter  was  allowed  to  the  Irish,  who  served 
in  the  royal  army,  and  when  Prince  Eupert  retaliated,  he  was 
told  that  there  was  a  great  difference  between  an  Irishman  and 
an  Englishman.  In  these  wars  the  exchange  of  prisoners, 
practised  just  before  in  the  wars  of  Germany,  became  systema 
tic.  Cartels  fixing  the  rate  of  ransom  for  prisoners  exchanged 
are  said  to  have  been  of  somewhat  later  date.  For  the  two 


RIGHTS    OF    SELF-DEFENCE  §  129 

centuries  past,  cruelty  to  prisoners  and  non-resisting  soldiers 
has  been  exceptional.  The  present  practice  is  to  spare  the 
lives  of  those  who  yield  themselves  up,  to  exchange  them  with 
captives  taken  by  the  other  party,  or  to  give  them  up  on  pay 
ment  of  a  ransom,  and  meanwhile  "  to  supply  them  with  the 
necessary  comforts  at  the  expense  of  the  state  to  which  they 
belong."  It  were  well  if  such  comforts  were  to  be  found  in  a 
state  of  captivity,  but  the  prison-hulks  of  some  civilized  nations, 
and  the  general  neglect  of  the  prisoners,  seem  almost  calcu 
lated  to  make  them  unserviceable  when  exchanged.  Officers 
and  others,  whose  word  can  be  relied  on,  are  often  set  free,  on 
their  parole  not  to  serve  during  the  war  or  until  ransomed. 
Persons  escaping  from  captivity,  and  retaken,  or  even  recap 
tured  in  war,  are  not  held  to  merit  punishment,  for  they  only 
obeyed  their  love  of  liberty ;  but  the  breach  of  parole  justly 
subjects  such  persons  to  heavy  punishment.  (Heffter,  §  129.) 
Deserters,  if  captured,  acquire  no  rights  from  joining  the 
other  belligerent,  and  may  be  put  to  death.  The  property 
belonging  to  combatants,  or  taken  on  the  field  of  battle,  has 
been  considered  to  be  lawful  plunder,  and  usually  goes  to  the 
victorious  officers  and  troops  (such  of  it  as  is  not  stolen),  as  a 
reward  of  successful  bravery. 

The  treatment  which  the  milder  modern  usage  prescribes 
5.  Treatment  of  ^or  regular  soldiers  is  extended  also  to  militia 
irregular  soldiers.  called  OTlt  by  p^lic  authority.  Guerilla  parties, 

however,  do  not  enjoy  the  full  benefit  of  the  laws  of  war. 
They  are  apt  to  fare  worse  than  either  regular  troops  or  an 
unarmed  peasantry.  The  reasons  for  this  are,  that  they  are 
annoying  and  insidious,  that  they  put  on  and  off  with  ease  the 
character  of  a  soldier,  and  that  they  are  prone,  themselves,  to 
treat  their  enemies  who  fall  into  their  hands  with  great 
severity. 

§129. 

It  is  in  regard  to  non-combatants  and  their  property  that 
e.  Non-combat-  the  mildness  of  modern  warfare  appears  in  most 

ants     and     their  ...  -a.     A!  •-  e 

property.  striking  contrast  with  the   severity  of  ancient. 

The  old  rule  was  to  regard  every  human  being  pertaining  to 


§  129  AND    REDRESS    OF    INJURIES,    ETC.  221 

the  enemy's  country  as  a  foe,  to  lay  waste  territory,  kill  or 
take  captive  those  who  could  serve  in  the  enemy's  armies,  en 
slave  women  and  children,  and  carry  off  all  the  property  of 
value  which  could  be  transported.  "Wars  to  a  .considerable 
extent  were  ravaging  forays  into  a  hostile  country,  and  the 
more  harm  was  done,  the  sooner,  it  was  thought,  redress  could 
be  procured.  War  thus,  especially  at  Eome,  fed  ^snges  of  the  an- 
the  public  treasury,  supplied  the  market  with  cients- 
slaves,  and  laid  the  foundation  of  the  wealth  of  noble  families. 
The  mango  or  slave-dealer  accompanied  the  armies,  and  for 
warded  the  captives,  purchased  by  him  at  wholesale,  to  the 
city  market.  If  a  territory  was  conquered,  the  former  inhabi 
tants  were  stripped  often  of  a  part  of  their  lands,  and  we  find 
one  third  confiscated  by  the  Romans  on  a  number  of  occasions ; 
or  they  were  removed  in  mass,  as  was  common  in  the  East, 
into  another  country.  When  the  Germans  conquered  the  em 
pire,  the  horrors  of  war  for  the  inhabitants  were  not  as  great 
as  those  which  the  Romans  in  their  best  days  inflicted  on  the 
conquered,  for  the  provinces  yielded  with  slight  struggles,  and 
the  possessors  of  the  soil  were  generally  allowed  to  retain  a 
part,  from  one  to  two  thirds,  of  their  lands. 

In  the  middle  age  the  treatment  which  Christians  received 
from  Christians  during  invasions  was  somewhat  of  thc  middle 
better,  although  between  them  and  Mohammedans  age- 
the  law  of  the  sword  prevailed.  Still,  although  women,  chil 
dren,  and  ecclesiastical  persons  were  mercifully  used,  every  able- 
bodied  peasant  was  accounted  an  enemy ;  armies  were  quartered 
on  an  invaded  district ;  and  pillage,  as  well  as  devastation,  was 
the  rule.  In  1346,  the  English,  under  Edward  III.,  marched 
through  Normandy,  burning  and  ravaging ;  but  though  they 
collected  a  vast  booty,  the  army  at  Crecy  was  very  soon  after 
wards  in  severe  want.  Nearly  seventy  years  after  this,  when 
Henry  Y.  invaded  France,  a  truer  policy  prevailed,  the  army 
was  accompanied  by  stores,  only  bread  and  wine  were  exacted 
from  the  peasants,  even  when  offering  resistance ;  and  orders 
to  the  troops  forbade  injuries  to  property  and  insults  to  women. 
At  the  end  of  this  century  the  invasions  of  Italy  by  the  French 


222  RIGHTS    OF    SELF-DEFENCE  §129 

under  Charles  VIII.  and  Louis  XII.  were  characterized  by  a 
return  to  greater  barbarity.  The  invaders  lived  on  the  re 
sources  of  the  country,  and  the  spirit  of  plunder  was  insatiable. 

The  same  spirit  was  seen  in  that  terrible  scourge  of  Ger- 
of  the  thirty  many,  the  thirty  years'  war.  Count  Mansfeld's 
years'  war.  maxim  was  that  war  should  support  itself,  while 

Christian  of  Halberstadt,  of  the  Protestant  party,  like  Mans- 
feld,  was  no  better  than  a  robber  and  incendiary.  On  the 
side  of  the  Imperialists,  Wallenstein  did  not  curb  the  rapacity 
of  his  troops,  who  plundered  on  every  hand  for  food,  and 
Tilly's  armies  were  worse  governed.  ISTor  did  the  French 
under  Guebriant  behave  much  better.  But  how  could  armies 
be  kept  from  plunder  and  brutality,  which,  being  unpaid, 
lived  by  requisitions,  made  food  and  winter-quarters  the  object 
of  their  campaigns,  and  were  a  collumes  of  all  nations,  without 
good  officers  or  a  sense  of  professional  honor.  Gustavus 
Adolphus  paid  and  disciplined  his  troops,  but  the  generals  of 
the  Swedes  after  his  death  allowed  greater  license  to  their 
forces :  thus  Baner,  after  the  victory  of  Wistock,  laid  Saxony 
and  Bohemia  waste. 

In  the  earlier  wars  of  Louis  XIV.  the  treatment  of  non- 
of  the  time  of  combatants  and  their  property  was  no  better, — in 
some  respects  was  even  worse.  Turenne  laid 
waste  large  tracts  of  country  to  deprive  the  enemy  of  the 
means  of  subsistence.  The  crimes  of  the  armies  under  Catinat, 
Feuquieres  and  Melas,  the  terrible  ravages  of  the  Palatinate, 
were  sanctioned  by  orders  from  Paris.  But  in  the  war  of  the 
succession  Marlborough  and  Villars  introduced  something  like 
humanity  into  the  conduct  of  their  armies.  By  an  understand 
ing  between  the  commanders,  each  belligerent  levied  contribu 
tions  on  the  district  occupied  by  his  troops,  which  were  not  to 
exceed  a  certain  amount,  determined  by  commissioners  of  the 
two  hostile  parties.  If  the  local  authorities  thought  that  too 
large  a  sum  had  been  demanded,  "  they  sent  in  complaints  to 
the  head-quarters  of  the  friendly  army,  which  were  attended 
to  immediately."  Villars  declares  his  satisfaction  at  having 
fed  an  army  of  two  hundred  battalions,  and  of  more  than  three 


§  129  AND    REDRESS    OF    INJURIES,    ETC.  223 

hundred  squadrons  of  cavalry  for  three  months  on  a  space  near 
the  Rhine  of  a  hundred  square  leagues  without  forcing  a  peas 
ant  to  quit  his  dwelling. 

ic  The  Prussians  and  Austrians  in  the  time  of  Frederick  the 
Great  contented  themselves  with  levying  contri-  Of  Frederick  the 
butions  where  they  moved,  and  speaking  gener-  Great- 
ally,  the  habit  of  depending  for  subsistence  on  magazines,  and 
on  the  cumbrous  provision-trains  which  followed  armies  on 
their  march,  is  noted  by  Jomini  as  a  characteristic  of  the 
eighteenth  century."     In  the  war  of  our  revolution  the  British 
government  declared  it  to  be  right  in  war  (1.)  to  demand  pro 
visions,  and  raise  contributions,  which  may  be  en- 
P        T    •»  -.1  i     /^  \  And  °f  the  En 

forced,  if  necessary,  by  the  sword ;  (2.)  to  ravage  Hsh  in  the  Amen- 

a  territory  where  you  have  no  other  way  of  bring 
ing  an  enemy  to  an  engagement  or  to  terms ;  (3.)  to  treat  reb 
els  as  enemies.  The  right  to  ravage  has  not  been  asserted  or 
acted  upon  since,  unless  in  a  few  cases,  which  were  pretended 
to  be  extreme.  In  the  last  war  between  Great  Britain  and  our 
country,  nothing  was  taken  from  private  persons  without  being 
paid  for,  and  the  same  may  be  said,  we  believe,  of  our  war  with 
Mexico. 

The  wars  of  Napoleon  were  marked  by  the  enormous  re 
quisitions  which  were  levied  upon  invaded  coun- 

•    .  -,       .  f-      ,  ,  Of  Napoleon. 

tries,  producing  amounts  nearly  large  enough  to 
save  the  necessity  of  increased  taxes  upon  France  itself.  The 
rule  with  Bonaparte  was  to  make  the  war  pay  for  the  war. 
Thus,  after  the  battle  of  Jena,  in  1806,  the  requisition  upon 
humbled  Prussia  was  more  than  a  hundred  millions  of  francs : 
half  that  sum  was  imposed  on  the  province  of  Yalencia,  after 
Suchet's  conquest  of  it  in  1812,  and  the  conquering  army  was 
to  have  a  donative  of  two  hundred  millions  besides,  to  be  col 
lected  chiefly  from  the  same  quarter  of  Spain. 

During  his  Peninsular  wars,  Wellington  was  among  friends, 
— where  all  codes  require  private  property  to  be  respected, — 
until  he  entered  France  in  1813,  and  there  policy,  if  nothing 
else,  demanded  the  observance  of  the  same  rule.  But  he  seems 
to  have  regarded  requisitions  as  iniquitous,  and  when  the  min- 


224  RIGHTS    OF    SELF-DEFENCE  §  130 

istry  at  home  proposed  that  he  should  adopt  them,  he  opposed 
the  system,  as  needing  terror  and  the  "bayonet  to  carry  it  out, 
— as  one  for  which  the  British  soldier  was  unfit,  and  as  likely 
to  injure  those  who  resorted  to  it.*  The  right  to  levy  contri 
butions  was  again  enforced  by  the  Prussians  in  the  war  of  1848 
with  Denmark,  but  it  slumbered,  we  believe,  in  the  recent  war 
of  the  allies  against  Russia. 

§130. 

To  sum  up  all  that  has  been  said  on  this  topic,  we  may  lay 
down  the  following  rules  of  war : 

Summing  up.  .  ... 

1.  Jrrivate  persons,  remaining  quiet,  and  tak 
ing  no  part  in  the  conflict,  are  to  be  unmolested,  but  if  the 
people  of  an  invaded  district  take  an  active  part  in  a  war,  they 
forfeit  their  claim  to  protection.  This  marked  line  of  separa 
tion  between  the  soldier  and  the  non-soldier,  is  of  extreme  im 
portance  for  the  interests  of  humanity. 

2.  The  property,  movable  as  well  as  immovable,  of  private 
persons  in  an  invaded  country,  is  to  remain  uninjured.     But 
if  the  wants  of  the  hostile  army  require,  it  may  be  taken  by 
authorized  persons  at  a  fair  value ;   but  marauding  must  be 
checked  by  discipline  and  penalties. 

3.  Contributions  or  requisitions  are  still  permissible,  on  the 
plea,  first,  that  they  are  a  compensation   for  pillage,  or   an 
equitable  repartition  of  what  would  accrue  from  this  source, — 
which,  if  pillage  is  wrong,  is  no  plea  at  all ; — and  again,  that 
they  are  needed  for  defraying  the  expenses  of  governing  a  con 
quered  province,  which  is  a  valid  plea  when  conquest  has  been 
effected,  but  not  before ;  and  thirdly,  on  the  plea  that  in  a  just 
war  it  is  right  to  make  the  "  enemy's  country  contribute  to  the 
support  of  the  army,  and  towards  defraying  all  the  charges  of 
the  war."  f     But  if  the  true  principle  is  that  war  is  a  public 
contest,  waged  between  the  powers  or  authorities  of  two  coun 
tries,  the  passive  individual  ought  not  to  suffer  more  than  the 
necessities  of  war  require.    Yattel  adds,  "  that  a  general  who 
would  not  sully  his  reputation,  is  to  moderate  his  contributions. 

*  Napier,  u.  s.,  IV.  21.  f  Yattel,  III.  9,  §  165. 


§  130  AND    REDRESS    OF    INJURIES,    ETC.  225 

An  excess  in  this  point  is  not  without  the  reproach  of  cruelty 
and  inhumanity."  But  many  generals  will  go  to  the  extreme 
of  what  they  think  can  be  exacted,  without  regard  to  their  re 
putation  ;  and  cruelty  and  inhumanity  are  as  unavoidable  in 
such  transactions,  as  they  would  be  if  sheriffs  and  their  men 
were  to  levy  on  goods  by  force  of  arms,  and  pay  themselves  out 
of  the  things  seized.  Moreover,  requisitions  are  demoralizing, 
and  defeat  their  own  ends.  They  foster  the  lust  of  conquest, 
they  arouse  the  avarice  of  officers,  they  leave  a  sting  in  the 
memories  of  oppressed  nations ;  who,  when  iniquity  is  full, 
league  together  to  destroy  the  great  plunderers  of  mankind. 
The  only  true  and  humane  principle  is  that  already  laid  down, 
that  war  is  waged  by  state  against  state,  by  soldier  against  sol 
dier.*  The  state  resists  an  effort  to  obtain  justice  ;  the  soldier 
obstructs  the  way  of  the  armed  officer  of  justice,  and  must  be 
resisted. 


*  We  cannot  forbear  inserting,  as  bearing  on  this  point,  an  opinion  of  Portalis, 
in  his  speech  at  the  installation  of  the  council  of  prizes,  which  we  borrow  from  Heff- 
ter,  §  119.  "The  right  of  war 'is  founded  on  this,  that  a  people,  in  the  interests  of 
self-conservation,  or  for  the  sake  of  self-defense,  will,  can,  or  ought  to  use  force 
against  another  people.  It  is  the  relation  of  things,  and  not  of  persons,  which  con 
stitutes  war ;  it  is  the  relation  of  state  to  state,  and  not  of  individual  to  individual. 
Between  two  or  more  belligerent  nations,  the  private  persons  of  which  these  nations 
consist,  are  enemies  only  by  accident ;  they  are  not  such  as  men,  they  are  not  even 
as  citizens,  they  are  such  solely  as  soldiers." 

To  the  same  effect  are  Talleyrand's  words  in  a  despatch  to  Napoleon,  of  Nov.  20, 
1806.  "Three  centuries  of  civilization  have  given  to  Europe  a  law  of  nations,  for 
which,  according  to  the  expression  of  an  illustrious  writer,  human  nature  cannot  be 
sufficiently  grateful.  This  law  is  founded  on  the  principle,  that  nations  ought  to  do 
to  one  another  in  peace,  the  most  good,  and  in  war,  the  least  evil  possible. 

"  According  to  the  maxim  that  war  is  not  a  relation  between  a  man  and  another, 
but  between  state  and  state,  in  which  private  persons  are  only  accidental  enemies, 
not  such  as  men,  nor  even  as  members  or  subjects  of  the  state,  but  simply  as  its 
defenders,  the  law  of  nations  does  not  allow  that  the  rights  of  war,  and  of  conquest 
thence  derived,  should  be  applied  to  peaceable,  unarmed  citizens,  to  private  dwellings 
and  properties,  to  the  merchandize  of  commerce,  to  the  magazines  which  contain  it, 
to  the  vehicles  which  transport  it,  to  unarmed  ships  which  convey  it  on  streams  and 
seas ;  in  one  word,  to  the  person  and  the  goods  of  private  individuals. 

"  This  law  of  war,  born  of  civilization,  has  favored  its  progress.     It  is  to  this  that 
Europe  must  ascribe  the  maintenance  and  increase  of  her  prosperity,  even  in  the 
midst  of  the  frequent  wars  which  have  divided  her." 
15 


226  RIGHTS    OF    SELF-DEFENCE  §  131 

4.  Extraordinary  cases,  as  retaliation  (§  126),  and  perhaps, 
in  fighting  with  barbarians  or  semi-barbarians,  who  acknowl 
edge  no  rules  of  war,  the  necessity  of  reading  them  a  severe 
lesson  (comp.  §  136),  will  justify  a  departure  from  these  prin 
ciples.  But  pillage  and  devastation  are  seldom  politic,  even 
when  they  are  supposed  to  be  just. 

§131. 

The  older  practice  made  little  distinction  between  public 
7  Public  prop-  and  private  property,  little  between  public  prop 
erty  of  different  kinds.  That  which  had  the  least 
relation  to  military  affairs,  as  libraries,  works  of  art,  public 
buildings  for  peaceful  purposes,  might  be  plundered  or  de 
stroyed.  For  nearly  two  centuries  the  Palatine  manuscripts, 
which  were  taken  from  Heidelberg  in  the  thirty  years'  war 
remained  at  Rome,  and  Napoleon  transported  pictures  to  the 
Louvre  from  every  quarter  where  his  arms  penetrated. 

The  treasures  of  the  Palatine  library,  or  rather  a  part  of 
them,  were  restored  after  the  peace  in  1815.  When  the  allies 
entered  Paris  after  the  battle  of  Waterloo,  they  recovered  the 
works  of  art  which  the  French  emperor  had  robbed  them  of. 
At  the  same  time  a  requisition  was  made  on  Paris  of  a  hundred 
millions  of  francs,  which  was  afterwards  greatly  reduced  in 
amount.  Great  complaint  has  been  made  against  these  meas 
ures  by  Frenchmen  of  all  political  shades ;  against  the  latter 
as  extortionate  and  oppressive,  and  the  other,  as  a  shameful 
abuse  of  victory.  But  the  requisition  was  not  beyond  the 
means  of  the  capital,  nor  unauthorized  by  the  practice  of  the 
French  themselves,  and  the  recovery  of  the  works  of  art  was 
an  act  of  simple  justice,  not  precluded  by  previous  treaty. 

The  rule  is  now  pretty  well  established,  that  while  all  mili 
tary  stores  and  buildings  are  lawful  plunder,  and  while  every 
edifice  in  the  way  of  military  movements, — whether,  indeed, 
public  or  private, — may  be  destroyed,  whatever  does  not  con 
tribute  to  the  uses  of  war,  ought  to  remain  intact.  It  was  a 
blot  to  the  British  character,  when  they  burned  the  capitol  at 
Washington,  and  the  excuse  for  it,  on  the  ground  of  retaliation, 


I 

g  132  AND    REDRESS    OF   INJURIES,    ETC.  227 

• 

although  insufficient,  showed  the  necessity  for  an  excuse  to  the 
civilized  world.  Even  military  hospitals  are  spared,  if  not  mis 
used  for  a  hostile  purpose. 

§132. 

Among  the  ancients,  the  license  of  war  in  successful  sieges 
and  storms  was  unlimited.  The  butchery  of  the 

TVI  i          •  -ii-i  ill  /»   8.  Sieges   and 

Platseans,  the  intended  but  revoked  cruelty  01  storms  of  forts 

•  T  «•%*••      i  i      •      an<*  towns. 

the  Athenian  people  towards  Mitylene,  their 
treatment  of  the  Melians,  the  sack  of  Thebes  by  Alexander, 
and  many  similar  events,  show,  that  on  such  occasions,  rapine, 
wholesale  slaughter,  and  enslavement,  whether  of  garrisoning 
troops,  or  of  citizens,  were  dependent  on  the  conqueror's  will. 
So,  too,  the  sack  of  Syracuse,  although  captured  without  a 
storm,'  that  of  Carthage,  that  of  Corinth,  and  of  other  towns  by 
the  Romans,  repeated  the  same  scenes.  The  sieges  of  Europe, 
down  to  modern  times,  were  terminated  in  a  manner  not  less 
disgraceful  to  the  general  and  the  soldier.  Thus  Rome  suffer 
ed  as  much  when  taken  by  the  generals  of  the  Emperor  Charles 
V.,  as  in  any  siege  it  ever  sustained.  "  When  Henry  II.  of 
France,  entered  the  Low  Countries,  every  city  which  did  not 
surrender  before  he  opened  fire,  was  given  up  to  destruction, 
the  garrison  hung,  the  inhabitants  put  to  the  sword."  The 
fate  of  Magdeburg,  in  the  thirty  years'  war  (in  1631),  is  per 
haps  the  most  dreadful  act  in  the  gloomy  drama,  and  naturally 
provoked  the  retaliation  of  the  Protestants,  when  Wurtzburg 
was  captured.  If  Cromwell  put  the  garrisons  of  Tredah  and 
Wexford  to  the  sword,  after  the  storming  of  those  cities,  it  was 
a  cruel  policy,  but  was  less  than  the  practice  of  war  at  that 
time  permitted. 

More  modern  usage  in  sieges  and  storms,  though  in  some 
respects  very  harsh,  shows  an  advance  in  humanity.  There 
is  a  distinction  to  be  made  bet  ween  forts  and  fortified  towns. 
Any  means  of  assailing  a  fort  may  be  used  which  are  likely  to 
be  successful,  but  many  generals  abstain  from  bombarding  a 
garrisoned  town,  and  resort  to  storming  in  order  to  save  the 
inhabitants ;  or  if  the  nature  of  the  place,  or  anything  else, 


228  RIGHTS    OF    SELF-DEFENCE  §132 

* 

renders  bombardment  necessary,  they  give  notice  to  the  inhab 
itants,  that  they  may  retire  to  a  place  of  safety.  It  was  a  pro 
ceeding  worthy  only  of  barbarians,  when  Suchet  drove  the 
people  of  Lerida,  in  Catalonia,  into  the  citadel,  then  threw 
shells  among  the  unprotected  multitude,  and  compelled  the 
governor  to  capitulate  by  such  an  appeal  to  his  humanity.  For 
merly,  it  was  regarded  somewhat  in  the  light  of  a  crime,  if  a 
commander  of  a  fortress  held  out  as  long  as  he  could,  and  in 
stances  may  be  adduced  where  such  officers  were  put  to  death 
for  their  obstinacy.  Now,  in  ordinary  cases,  surrendering  at 
discretion  only  reduces  the  soldiers  to  the  state  of  prisoners  of 
war.  A  commander  who  should  blow  up  the  works  of  his  for 
tress,  and  break  through  a  blockading  army,  would,  according 
to  the  opinion  of  some,  be  doing  an  act  contrary  to  the  laws 
of  war;  but  this  does  not  appear  to  be  true,  although  the 
blockader  might  be  justified  in  refusing  quarter  to  those,  or  at 
least  to  those  officers  who  should  seek  thus  to  deprive  them  of 
the  fruit  of  their  toils.* 

When  a  fortified  town  has  been  stormed,  the  prevailing  usage 
of  modern,  as  of  ancient  warfare,  is,  to  let  the  soldiers  have  full 
license.  The  frightful  scenes  at  the  storms  of  Ciudad  Eodrigo, 
Badajos,  and  St.  Sebastian,  under  so  humane  a  general  as  "Wel 
lington,  show  that  it  is  thought  impossible  at  such  times  to 
curb  the  ferocity  of  soldiers.  Wellington  himself  was  of  this 
opinion ;  but  says  Napier,f  "  let  the  plunder  of  a  town  after 
an  assault  be  expressly  made  criminal  by  the  laws  of  war,  with 
a  due  punishment  attached ; — let  a  select,  permanent  body  of 
men,  receiving  higher  pay,  form  a  part  of  the  army,  and  be 
charged  to  follow  storming  columns,  with  power  to  inflict" 
even  death,  if  necessary ;  let  money,  in  proportion  to  the  im 
portance  and  delay  of  the  services,  be  paid  to  the  successful 
troops,  and,  "with  such  regulations,  the  storming  of  towns 
would  not  produce  more  military  disorders  than  the  gaining  of 
battles  in  the  field." 

*  Comp.  Napier,  u.  s.,  IV.  252.  f  Id.  IV.  216. 


§  134  AND    REDRESS    OF    INJURIES,    ETC.  229 


§133. 

The  liability  of  private  property  to  capture  on  the  sea,  we 
have  already  considered,  and  the  regulations  of  Laws  of  war  on 
capture  we  shall  reserve  for  a  separate  section.  It  the  sea- 
has,  moreover,  already  appeared,  that  the  usages  of  naval  war 
fare  are  more  like  those  relating  to  attacks  on  forts,  than  like 
those  which  control  ordinary  land  operations ;  and  that  even 
submarine  instruments  of  death,  exceptionable  as  they  are,  are 
not  yet  discarded.  A  word  remains  to  be  said  in  regard  to  the 
treatment  of  sea  ports  and  coasts  by  vessels  of  the  enemy.  For 
a  long  time  it  was  lawful  to  descend  upon  coasts,  bombard 
towns,  levy  contributions,  and  burn  places  which  refused  to 
pay  them.*  Even  in  1813,  the  British  -admiral,  Cochrane,  had 
orders  to  destroy  property  on  the  American  coast,  but  the  in 
jury  done  to  Newark,  in  Canada,  by  our  forces,  was  given  as 
the  reason.  More  recent  operations  have  shown  a  milder  spirit. 
Odessa  was  not  attacked  in  the  late  war  with  Russia,  as  being 
merely  a  commercial  port.  On  the  whole,  there  are  signs  that 
ravages  by  forces  on  both  elements  and  requisitions  on  the 
ground  of  exemptions  from  them  are  growing  obsolete. 

§134.       .      K 

Communications  between  enemies  in  war  have  long  been 
carried  on  by  heralds,  persons  bearing  flap's  of 

,  J  .&  Commercia  belli. 

truce,  cartels  for  the  exchange  of  prisoners  and 
other  purposes,  etc.  A  belligerent  may  decline  to  receive  a 
flag  of  truce,  or  to  hold  any  intercourse  with  the  enemy,  or 
may  even  fire  upon  those  who  persist  in  attempting  to  open 
such  intercourse  after  being  warned  off,  but  the  bitterness  of 
war  rarely  reaches  this  point. 

Contracts  lawful  during  war,  as  safeguards  and  passports, 
licenses  to  trade,  armistices,  ransom  contracts,  contracts  to  pay 

*  The  German  word  brandschatz,  literally  denoting  an  estimate  of  the  burning, 
or  an  equivalent  to  the  burning  of  a  dwelling  or  town,  and  applicable  to  the  opera 
tions  of  both  military  and  naval  war,  contains  in  itself  the  history  of  whole  ages  of 
barbarity. 


230  RIGHTS    OF    SELF-DEFENCE  §  135 

requisitions  and  the  like,  will  be  considered  elsewhere,  as  far 
as  may  be  necessary.     (Comp.  §  146,  §  147,  §  142.) 

§135. 

A  general  rule  of  war  allows  the  punishment  of  death  to  be 
inflicted  upon  spies  who  are  found  in  disguise 
within  the  lines  of  an  army.  The  case  of  Major 

Andre,  painful  as  it  was,  was  strictly  within  military  usage. 

But  military  spies  in  their  regimentals,  when  taken,  are  treated 

as  ordinary  prisoners  of  war. 


SECTION  III. — Of  Civil  Wars,  Wars  with  Savages,  Piracy  and 
the  Slave-trade. 

§136. 

We  have  thus  far  contemplated  wars  between  sovereign 
states ;  but  there  may  also  be  intestine  or  internal  wars ;  wars 
with  hordes  of  savages,  or  with  nations  not  governed  by  our 
international  code ;  and  wars  with  pirates. 

By  internal  war  we  intend  movements  more  serious  and 
lasting  than  sedition,  waged  by  portions  of  the 

Internal  wars.  &'  .     '  J    J  . 

people  oi  a  country  against  one  another, — includ 
ing  in  the  term  country  the  complex  body  of  a  nation  and  its  col 
onies  or  other  dependencies.  In  some  cases  the  connexion  wi£h 
dependencies  may  be  so  remote  that  the  war  may  almost  be 
called  a  foreign  one.  A  civil  war  is  one  in  which  the  opposing 
parties  are  distributed  over  the  territory ;  while  a  war  in  which 
they  are  localized  may  be  called  a  rebellion,  insurrection  or  re 
volt.  A  civil  war  again  does  not  aim  at  the  destruction  of 
unity,  but  rather  at  some  change  of  government,  constitution  or 
laws,  while  the  other  may  aim  at  sundering  parts  before  united. 
With  internal  wars  international  law  comes  into  contact  so 
far  as  the  laws  of  war,  that  is,  of  humanity  and  natural  justice, 
are  concerned,  and  also  in  the  bearings  of  the  war  upon  the  in 
terests  and  rights  of  foreign  states — a  point  to  be  considered  in 


§•136  AND    REDRESS    OF    INJURIES,    ETC.  231 

the  sequel.  (§166  £.)  In  every  state  there  are  laws  against 
resistance  to  the  authority  of  the  government,  defining  sedition, 
treason,  and  the  like,  and  punishing  in  person  or  property  or 
both.  When  an  internal  war  breaks  out,  the  government  must 
determine  whether  the  municipal  or  the  international  code,  in 
whole  or  in  part,  shall  be  adopted.  In  general  the  relation  of 
the  parties  ought  to  be  nearly  those  of  ordinary  war,,  which  hu 
manity  demands,  and  will  le,  because  otherwise  the  law  of  re 
taliation  will  be  applied.  Municipal  law  may  be  enforced  with 
less  evil  in  the  way  of  pecuniary  than  of  personal  penalties ; 
fines  or  confiscations  may  be  efficacious  in  strengthening  the 
government  and  deterring  from  rebellion.  If  slaves,  as  among 
us,  form  a  part  of  the  property  of  the  rebels,  since  slavery  is  lo 
cal  and  the  law  of  nations  knows  of  no  such  thing  (§  TO,  §138), 
the  advancing  military  power  of  the  government  may  set  them 
free  and  use  or  protect  them ;  and  indeed,  if  force  overthrows 
the  local  laws  on  which  slavery  rests,  they  become  free  of  course. 

The  same  rules  of  war  are  required  in  sueh  a  war  as  in  any 
other — the  same  ways  of  fighting,  the  same  treatment  of  pris 
oners,  of  combatants,  of  non-combatants,  and  of  private  prop 
erty  by  the  army  where  it  passes :  so  also  natural  justice  de 
mands  the  same  veracity  and  faithfulness  which  are  binding 
in  the  intercourse  of  all  moral  beings. 

Nations  thus  treating  rebels  by  no  means  concede  thereby 
that  they  form  a  state,  or  that  they  are  de  facto  such.  There 
is  a  difference  between  belligerents  aad  belligerent  states, 
which  has  been  too  much  overlooked. 

"When  a  war  ends  to  the  disadvantage  of  the  insurgents, 
municipal  law  may  clench  the  nail  which  war  has  driven,  may 
hang,  after  legal  process,  instead  of  shooting,  and  confiscate  the 
whole  instead  of  plundering  a  part.  But  a  wise  and  civilized 
nation  will  exercise  only  so  much  of  this  legal  vengeance,,  as 
the  interests  of  lasting  order  imperiously  demand. 

Again,  as  savage  tribes  are  not  governed  by  the  justice 
which  is  acknowledged  in  Christian  lands,  inter-  Wars  witk  6aT. 
national  law  is  here  likewise  inapplicable.     But  ages< 
here  one  of  the  parties  being  a  subjec^  of  a  code  which  he 


232  RIGHTS    OF    SELF-DEFENCE  §  137 

believes  to  be  founded  in  justice,  it  would  be  flagitious  for  him 
to  depart  from  the  essential  principles  which  he  observes  to 
wards  other  Christian  states.  Thus  wThile  summary  punish 
ment  for  robbery  and  treachery  may  be  expedient,  the  Chris-v 
tian  state  is  bound  by  its  own  character  and  practice,  in  war 
ring  with  savages,  to  exercise  good  faith  and  humanity,  to  treat 
prisoners  well,  to  respect  treaties  and  truces,  and  to  regard  the 
civil  rights  of  the  savage  communities.  For  though  too  de 
graded  to  understand  what  their  obligations  are,  they  can  be 
raised  far  above  their  present  level  by  humane  examples ;  while 
civilized  men,  falling  down  in  their  dealings  with  savages  to 
their  level,  only  increase  their  spirit  of  suspicion  and  revenge, 
and  sink  them  to  lower  depths  of  ferocity. 

Here  let  it  be  added,  that  the  civilized  and  half-civilized 
Dealings  with  civ-  nations  of  the  world,  which  have  not  owned  our 
dozenontaown^?  la^  of  nations,  deserve  a  peculiar  consideration. 
The  object  in  their  case  ought  to  be  not  only  to 
act  justly  and  kindly  towards  them,  but  also  to  lead  them  to 
adopt  our  international  law.  Why  should  they  not,  if  it  is 
based  on  the  true  principles  of  human  nature,  presupposes  a 
universal  morality,  and  is  thus  fitted  to  be  the  law  of  mankind  ? 
In  all  probability  a  short  time  will  be  needed  to  bring  Persia, 
Siam,  China,  or  Japan,  under  this  law,  compared  with  that  dur 
ing  which.  Christian  states  have  been  making  and  breaking  it. 

§137. 

"With  piracy,  however,  the  law  of  nations  has  to  do,  as  it 
pirates  and  tueir  *s  a  crime  n<>t  against  any  particular  state,  but 
treatment.  against  all  states  and  the  established  order  of  the 

world.  Piracy  is  robbery  on  the  sea,  or  by  descent  from  the 
sea  upon  the  coast,  committed  by  persons  not  holding  a  com 
mission  from,  or  at  the  time  pertaining  to,  any  established 
state.  It  is  the  act  (1.)  of  persons  who  form  an  organization 
for  the  purposes  of  plunder,  but  who,  inasmuch  as  such  a  body 
is  not  constituted  for  political  purposes,  cannot  be  said  to  be  a 
body  politic ;  (2.)  of  persons  who,  having  in  defiance  of  law 
seized  possession  of  a,  chartered  vessel,  use  it  for  the  purpose 


§137  AND    REDRESS    OF    INJURIES,    ETC.  233 

of  robbery ;  (3.)  of  persons  taking  a  commission  from  two  bel 
ligerent  adversaries.  The  reason  for  ranking  these  latter 
among  pirates  is,  that  the  animus furandi  is  shown  by  acting 
under  two  repugnant  authorities.  It  has  been  held  by  some 
that  a  vessel  which  takes  commissions  even  from  two  allies,  is 
guilty  of  piracy,*  but  others,  as  "Wheaton  (El.  II.  2,  §  15),  and 
Phillimore  (I.  -394),  regard  such  an  act  only  as  illegal  and 
irregular. 

On  the  other  hand  it  is  not  held  to  be  piracy,  if  a  privateer 
or  other  armed  vessel,  exceeding  its  commission,  prey  on  com 
merce  admitted  by  its  sovereign  to  be  friendly.  Offences  of 
this  kind  entitle  the  injured  party  to  compensation,  but  the 
jurisdiction  belongs  to  the  vessel's  sovereign,  who  is  responsi 
ble  for  the  conduct  of  his  officer. 

Piracy  being  a  crime  against  nations,  may  be  brought  be 
fore  any  court,  no  matter  what  the  nationality  of  the  plaintiff 
or  the  origin  of  the  pirate  may  be.  It  is  a  natural  although 
not  a  necessary  consequence  of  this  principle,  that  an  acquittal 
by  any  court  in  Christendom  is  an  effectual  bar  against  another 
trial  for  the  same  offence. 

As  pirates  acquire  no  title  to  what  they  take,  on  recapture 
it  reverts  to  the  proprietor  without  application  of  the  rule  of 
postliminy.  (Comp.  §  143.) 

The  punishment  of  piracy  depends  on  the  muncipal  law  of 
the  state  where  the  offence  is  tried :  the  established  penalty  is 
death. 

The  law  of  each  state  may  enlarge  the  definition  of  the 
crime  of  piracy,  but  must  confine  the  operation  of  the  new  de 
finition  to  its  own  citizens  and  to  foreigners  on  its  own  vessels. 
So  by  treaty  two  states  may  agree  to  regard  as  piracy  a  parti 
cular  crime  which  is  not  classed  under  international  piracy. 
The  effect  of  such  a  treaty  is  to  give  to  both  states  jurisdiction 
for  this  crime  over  the  citizens  or  subjects  of  both,  but  its 
operation  has  no  bearing  on  other  nations. 

In  the  time  of  Bynkershoek  it  was  made  a  question  whether 

\ 

*  This  is  taught  by  Hautefeuille  (I.  190  ed.  2)  after  Masse,  de  Martens  (sur  lea 
armateurs,  Chap.  2.  §  14)  and  Valin. 


234:  RIGHTS    OF    SELF-DEFENCE  §  188 

the  Barbary  powers  were  pirates,  as  earlier  writers  on  the  law 
of  nations  had  pronounced  them  to  be.  He  decides  that  they 
form  states,  and  may  be  "justi  hostes"  in  war;  and  that  in 
fact  Europe  had  acknowledged  this  by  making  treaties  with 
them.  No  one  now  will  question  this,  especially  as  in  the 
course  of  time  these  states, — those  of  them  which  still  exist, — 
have  in  a  measure  laid  aside  their  piratical  habits.* 

§138. 

In  the  progress  of  humane  and » Christian  principles,  and 
is  the  slave-trade  °^  correct  views  of  human  rights,  slavery  has 
come  to  be  regarded  as  an  unjust  and  cruel  degra 
dation  of  man  made  in  the  image  of  God.  It  is,  accordingly,  a 
status  unprotected  by  the  law  of  nations,  and  supported  where 
it  exists,  only  by  local  law.  (§  70.)  Hence  persons  seized  to  be 
sold  as  slaves  in  a  territory  where  the  importation  of  slaves  is 
forbidden,  commit  no  crime  when  they  get  possession  of  the 
vessel,  and  either  slay  the  crew,  or  compel  them  to  sail  for 
another  country.  They  are  only  defending  their  lawful  rights. 
Thus,  when  certain  blacks  who  had  lately  been  imported  into 
Cuba  from  Africa,  and  were  therefore  illegally  held  in  bond 
age,  and  were  by  right  free  according  to  Spanish  law,  rose  on 
the  crew  between  Havana  and  Puerto  Principe,  killed  the 
captain,  and  finally  came  into  the  waters  of  the  United  States, 
it  was  held  by  the  Supreme  Court  that  if  they  had  been  slaves, 
our  treaties  with  Spain  would  have  required  their  restoration, 
but  that  they  were  not  slaves,  and  if  not  slaves,  not  pirates,  f 

With  new  views  of  men's  rights,  and  with  fuller  knowledge 
of  the  woes  inflicted  on  Africa  by  the  slave-trade,  this  traffic, 
which  misguided  benevolence  at  first  suggested,  became  abhor- 

*  For  piracy  in  general,  comp.  especially  Bynkersh.  Quaest.  J.  P.  I.  17,  entitled 
de  Piratica,  et  an  Barbari  in  Africa  sint  piratae.  Comp.  also  Kent,  Lect.  IX.,  and 
Wildman,  II.  150.  The  principal  passages  of  the  Roman  lawyers  respecting  restora 
tion  of  things  taken  by  pirates  without  postliminy,  are  one  from  Ulpian  (Dig.  49, 
Tit.  15,  24),  uqui  a  latronibus  captus  est,  servus  latronum  non  est ;  nee  postliminium 
illi  necessarium  est,"  and  one  from  Paulus  (u.  s.  19,  §  2),  "a  piratis  aut  latronibus 
capti  liberi  permanent." 

f  United  States  v.  The  Amistad,  15  Peters,  518-598. 


§138  AND    REDRESS    OF    INJURIES,    ETC.  235 

rent  to  the  feelings  of  Christendom,  and  has  everywhere 
become  unlawful.  Denmark,  we  believe,  led  the  way,  in  1792, 
by  prohibiting  the  slave-trade,  and  importation  into  her 
colonies  of  slaves  from  abroad  after  the  year  1802.  Under  the 
constitution  of  the  United  States,  the  importation  of  slaves 
could  not  become  illegal  before  1808,  but  acts  passed  in  1794 
and  1800,  forbade  all  citizens  and  residents  to  carry  slaves 
from  this  country  to  a  foreign  one,  or  from  one  foreign  country 
to  another.  In  1807  the  importation  of  slaves  was  made  to 
cease  after  January  1,  1808,  and  in  1818  a  law  was  passed  in 
creasing  the  penalties  of  the  trade,  and  applying  to  all  participa 
tion  of  citizens  of  the  United  States  in  it.  In  1819  the  vessels 
and  effects  of  citizens  found  to  have  been  engaged  in  the  trade 
were  made  liable  to  seizure  and  confiscation.  And  by  the  act 
of  March  3,  1820,  all  persons  over  whom  our  jurisdiction  ex 
tends,  that  is,  all  persons  in  vessels  owned  within  the  United 
States,  and  all  citizens  on  foreign  vessels,  concerned  in  the 
slave-trade,  or  in  kidnapping  negroes  or  mulattoes,  were  to  be 
deemed  pirates  and  to  suffer  death. 

In  Great  Britain,  the  first  act  declaring  the  slave-trade  un 
lawful  was  passed  in  1807,  but  not  until  1824  was  it  pronoun 
ced  to  be  piracy.  Nearly  all  the  nations  of  Europe  have  sub 
sequently  passed  laws  more  or  less  stringent  against  the  traffic. 
Its  abolition  was  conceded  by  Spain  in  her  treaty  with  Great 
Britain,  in  September,  1817.  Portugal  agreed  to  prohibit  it 
north  of  the  equator,  l)y  treaty  with  England,  of  January  22, 
1815,  and  it  ought  by  the  same  treaty  to  have  come  altogether 
to  an  end  when  the  independence  of  Brazil  was  acknowledged 
in  1825.  It  ceased  to  be  legal  in  Brazil  by  1830,  and  in  1831, 
a  law  of  that  country  not  only  freed  all  slaves  who  should  be 
imported  afterwards,  but  also  provided  for  their  reconveyance 
to  Africa. 

In  1824,  the  House  of  Representatives  in  our  Congress,  by 
a  very  large  majority,  requested  the  President  to  make  arrange 
ments,  by.  which  the  slave-trade  should  become  piracy  undei 
international  law  ;  but  nothing  was  hereby  effected.  (§  198.) 
Great  Britain,  both  before  and  after  this,  in  a  number  of 


236  RIGHTS   OF    SELF-DEFENCE  §  139 

treaties,  secured  the  suppression  of  the  trade,  with  the  mutual 
right  of  search,  of  which  we  shall  speak  hereafter.  (§  197.) 
In  her  treaty  with  Brazil,  of  March  13,  1827,  it  was  stipulated 
that,  after  three  years,  -a  subject  of  the  Emperor  of  Brazil, 
carrying  on  the  trade,  should  be  deemed  and  treated  as  a 
pirate.  This  must  mean  that  whatever  may  be  done  under 
the  laws  of  nations,  for  the  detection  and  seizure  of  pirates, 
might  be  done  under  the  treaty  towards  Brazilian  slave-traders, 
as  search,  capture,  and  trial  before  the  captor's  courts ;  but 
England  forbore  to  take  the  steps  to  which  the  treaty  gave  her 
a  right.* 

However  much  the  slave-trade  may  deserve  to  be  ranked 
with  piracy,  or  ranked  as  a  worse  crime  still,  it  is  not  yet  such 
by  the  law  of  nations,  and  would  not  be,  if  all  the  nations  in 
Christendom  constituted  it  piracy  by  their  municipal  codes. 
For  the  agreement  of  different  states  in  the  definitions  and 
penalties  of  crimes,  by  no  means  gives  to  any  one  of  them  the 
right  to  execute  the  laws  of  another.  That  power  must  be 
acquired  by  treaty  between  separate  states,  or  by  consent  of 
all  states,  in  which  latter  case  it  would  belong  to  international 
law.  9  Mean  while,  the  fact  that  the  slave-trade  has  not  been 
placed  in  this  category,  adds  greatiy  to  the  difficulty  of  sup 
pressing  it,  as  will  appear  in  the  sequel.  (§  199.) 


SECTION  IV. — Capture  and  Recapture,   Occupation  and 
Recovery  of  Territory. 

§139. 

Capture  of  private  property  has  nearly  disappeared  from 
land  warfare,  but  is  allowed  by  international  war, 

Capture  in  gene-  . 

rai,  especially       as  well  in  the  case  of  neutrals  as  of  enemies,  at 

from  enemies.  .11 

sea.  Ihe  same  humane  principles,  however, 
which  have  put  a  stop  to  it  on  the  one  element,  are  at  work  to 
abridge  its  sphere  on  the  other.  The  rule  already  adopted  by 
the  principal  European  powers,  that  free  ships  engaged  in  law- 

*  Wildman,  II.  150,  seq.     For  the  section  in  general,  Comp.  Kent,  Lect.  IX. 


AND    REDRESS    OF    INJURIES,    ETC.  237 

/ 

ful  trade  make  free  goods,  is  sure  to  become  universal ;  and  if 
so,  the  hostile  property  exposed  to  the  cruisers  of  the  other 
belligerent  may  become  so  inconsiderable,  that  the  trade  of 
plundering  on  the  sea  will  be  hardly  worth  carrying  on. 
Meanwhile,  the  only  specious  pretexts  for  marine  capture  are 
these  two,  that  the  enemy's  commerce  furnishes  him  with  the 
means  of  war,  so  that  it  may  justly  be  obstructed,  and  that  the 
captured  vessels  are  pledges  for  the  reparation  of  injuries. 
The  former  pretext  will  amount  to  nothing,  if  hostile  trade  can 
be  conducted  in  such  a  way  as  to  exempt  it  from  capture. 
The  other  pretext  will  require  that  ships  and  goods  captured 
be  regarded,  until  peace  settles  all  questions  between  nations, 
as  simply  detained  to  be  restored,  or  have  an  equivalent  paid 
for  them  if  necessary.  "We  must  profess,  however,  that  we 
indulge  that  "  pious  chimsera,"  as  it  has  been  called,  that  all 
private  property  on  the  sea,  engaged  in  a  lawful  trade  to  per 
mitted  ports,  ought  to  cross  the  seas  in  safety ;  we  have  the 
sanction  of  the  authority  of  Franklin,  and  of  sober  propositions 
made  by  -our  own  government,  for  regarding  such  a  rule  as 
both  desirable  and  practicable ;  we  must  esteem  it  nearer  to 
justice,  and  certainly  to  humanity,  than  the  present  inequality 
of  risk  on  the  two  elements ;  and  it  will  probably  be  found, 
owing  to  the  new  rule  in  favor  of  neutrals,  that  marine  capture 
will  not  be  worth  retaining.* 

The  fact,  meanwhile,  is,  that  on  land  the  property  of  com 
batants,  when  taken  in  battle,  goes  to  the  victors,  and  that 
soldiers  have  generally  free  license  of  plunder  at  the  storming 
of  towns.  On  the  sea  all  private  property  of  the  enemy's  sub 
jects  is  lawful  plunder,  unless  secured  by  a  special  permit. 
And  on  both  elements  most  kinds  of  public  property  of  the 
enemy  are  exposed  to  hostile  depredations.  The  right  is  ex 
ercised  even  .against  such  vessels  as  have  had  no  notice  of  the 
commencement  of  hostilities,  and  everywhere  except  in  neutral 
waters. 

*  In  a  meeting  of  the  chambers  of  commerce  of  Hamburg  and  Bremen,  resolu 
tions  have  been  recently  passed  to  memorialize  the  congress  expected  to  meet  at 
Paris,  in  favor  of  the  exemption  of  private  property  on  the  sea  from  capture.  The 
resolution  passed  at  Bremen,  Dec.  2,  1859,  is  as  follows: — "That  the  inviolability 


238  RIGHTS    OF   SELF-DEFENCE  §  HO 

§140. 

From  the  principle  that  states  are  the  belligerent  parties, 
it  flows,  as  we  have  seen,  that  an  authority  de- 

Property  in  prizes,      .,/.,-,  •  ,      <?  • 

how  and  when  he-  rived  from  the  state  is  necessary,  before  a  prize 
can  be  taken.  It  flows,  also,  from  the  same  prin 
ciple,  that  all  private  title  to  prize  must  be  derived  from  the 
laws  of  the  state.  When  does  such  a  title  commence  ?  Some 
have  said,  at  the  moment  of  capture,  or  of  taking  possession, 
as  though  the  vessel  taken  were  a  res  nullius ;  others,  after 
twenty-four  hours'  possession ;  others,  when  the  prize  is  carried 
infra  prcesidia,  and  is  thus  secure  against  recapture ;  *  and 
others,  finally,  when  a  court  has  adjudged  it  to  the  captor. 
"  The  question,"  says  Kent,  "  never  arises  but  between  the 
original  owner  and  a  neutral  purchasing  from  the  captor ;  and 
between  the  original  owner  and  the  recaptor.  If  a  captured 
ship  escape  from  the  captor,  or  is  retaken,  or  the  owner  ran 
soms  her,  his  property  is  thereby  revested.  But  if  neither  of 
these  events  happens,  the  question  as  to  change  of  title  is  open 
to  dispute,  and  many  arbitrary  lines  have  been  drawn,  partly 
from  policy,  to  prevent  too  easy  disposition  of  the  property  of 
neutrals,  and  partly  from  equity,  to  extend  \he  jus  postliminii 
in  favor  of  the  owner."  f  Thus  there  is  no  settled  view  or 
principle  as  to  the  time  when  a  title  from  capture  begins. 
Perhaps  no  definite  rule  can  be  laid  down  any  more  than  in 
answering  the  question  when  occupation  ends  in  ownership, 
which  the  laws  of  different  states  will  determine  differently. 
The  state's  title  begins  in  the  fact  of  seizure  according  to  the 

of  person  and  property  in  time  of  war,  on  the  high  seas,  extended  also  to  the  subjects 
and  citizens  of  belligerent  states,  except  so  far  as  the  operations  of  war  necessarily 
restrict  the  same,  is  imperatively  demanded  by  the  sentiments  of  justice  universally 
entertained  at  the  present  day."  They  then  request  the  senate  of  Bremen  to  sup 
port  this  principle,  and  to  lay  the  subject  before  the  German  confederation  or  the 
proposed  congress. 

*  Comp.  Bynkersh.  Quaest.  J.  P.  I.  4.  The  twenty-four  hours'  rule  grew  up  hi 
modern  Europe,  and  is  purely  arbitrary.  The  rule  that  the  prize  must  be  carried 
infra  praesidia  was  a  Roman  one;  "cujus  juris  non  alia  ratio  est  quam  quod  tune 
omnis  rei  persequendae  et  recuperandae  spcs  decollaverit."  Bynkersh.  u.  s. 

f  Kent,  I.  101,  Lect.  V. 


§  141  AND    REDRESS    OF   INJURIES,    ETC.  239 

rights  of  war — that  is,  "  when  the  battle  is  over,  and  the  spes 
recuperandi  is  gone."  (Phillimore  3,  460.)  But  the  title  can  be 
contested  in  certain  circumstances  by  neutral  governments,  as 
on  the  ground  that  capture  was  made  in  their  waters;  or  by 
private  subjects  of  neutral  governments,  as  in  the  various  cases 
of  seizure  of  neutral  goods  and  ships;  or  by  subjects  of  the  en 
emy,  as  where  licenses  to  trade  were  not  respected  by  the  cap 
tor.  If,  now,  a  neutral  buys  the  prize  immediately  after 
capture,  he  buys  it  subject  to  the  claims  of  injured  parties,  and 
has  his  remedy  in  the  captor's  courts,  provided  the  latter 
conveys  that  for  which  he  had  no  good  title.  If  the  owner 
ransoms  her,  he  extinguishes  the  captor's  title,  of  whatever 
kind  it  be,  good  or  bad.  The  laws  of  the  state  determine  the 
steps  which  the  captor,  as  the  state's  agent,  must  take  in  regard 
to  the  property,  and  especially  at  what  time  he  is  allowed  to 
have  an  entire  or  partial  interest  in  the  things  taken.  It  is 
the  first  duty  of  the  captor,  says  Mr.  Wildman  (2,  176,)  to 
bring  in  his  prize  for  adjudication,  but  "  if  this  is  impossible, 
his  next  duty  is  to  destroy  the  enemy's  property :  if  it  be 
doubtful  whether  it  be  the  enemy's  property,  and  impossible 
to  bring  it  in,  no  such  obligation  arises,  and  the  safe  and  prop 
er  course  is  to  dismiss."  Of  course,  if  this  doctrine,  based  on 
English  decisions,  be  true,  destruction  of  neutral  ships  or  prop 
erty  by  mistake  must  be  made  good  by  the  cruiser's  govern 
ment.* 

§141. 

By  modern  usage,  a  complete  title  to  a  prize  taken  at  sea, 
is  given  to  the  captor  only  by  the  sentence  of  a  complete  title 
competent  court.     By  a  competent  court  is  in-  given  by  a  court' 
tended  one  which,  by  the  law  of  the  state,  has  jurisdiction  in 
matters  pertaining  to  prize,  no  matter  what  other  jurisdiction 
it  may  have,  or  not  have.     Such  courts  in  the  United  States, 
are  the  district  and. circuit  courts  of  the  confederation,  with 
appeal  up  through  the  circuit  to  the  supreme  court  of  the 

*  The  doctrine  is  unsafe  for  neutrals,  where  the  cruiser  pertains  to  a  belligerent 
de  facto,  attempting  to  become  a  nation,  not  to  a  lawful  and  acknowledged  power. 


240  RIGHTS    OF    SELF-DEFENCE  §  142 

Union ;  such  were,  in  France,  after  1659,  the  council  of  prizes, 
with  appeal  to  the  council  of  state,  and  thence  to  the  royal 
council  of  finance ;  and  such  are,  in  the  British  dominions,  the 
vice-admiralty  and  admiralty  courts,  with  appeal  to  a  commit 
tee  of  members  of  the  privy  council,  called  Lords  Commis 
sioners  of  Prize  Causes.  And,  in  general,  the  court  must  be 
one  acting  under  the  authority  of  the  captor's  sovereign,  and 
holding  its  session  at  home  or  within  the  territory  of  an  ally. 
A  consul  or  ambassador,  residing  abroad,  has  no  jurisdiction, 
it  is  held,  in  prize  cases  ;  and  when  the  French  government,  in 
1T96,  allowed  their  consuls  and  vice-consuls,  in  neutral  ports, 
to  decide  such  questions,  Sir  W.  Scott  declared  it  a  thing  un 
heard  of.  (Manning,  p.  381 ;  Heffter,  §  138.)  Neutrality  is  too 
delicate  a  thing  to  allow  either  the  courts  or  territory  of  neu 
trals  to  be  used  in  such  cases.*  It  is  not  necessary,  however, 
that  the  prize  itself  should  be  conveyed  into  the  ports  of  the 
captor's  sovereign  or  of  his  ally,  but  if  a  neutral  consents,  it 
may  be  taken  into  a  convenient  port  of  that  description.  Such 
consent  the  neutral  may  give  or  withhold,  as  he  judges  best, 
and  it  is  not  generally  withheld;  but  perhaps  the  strictest 
notion  of  what  neutrality  requires,  and  the  true  policy  of 
neutrals,  which  is  to  render  capture  on  the  high  seas  as  incon 
venient  as  possible,  demand  of  them  to  close  their  ports  to 
prizes,  unless  some  urgent  cause,  as  a  storm  or  the  vessel's 
condition,  should  render  temporary  sojourn  there  necessary. 
It  will  be  the  captor's  right,  if  the  neutral  opens  his  ports,  to 
carry  there  prizes  taken  from  the  neutral's  own  subjects  as 
well  as  those  belonging  to  any  other  nationality. 

§142. 

It  may,  for  various  reasons,  be  inconvenient  to  send  a  prize 
Ransom  of  cap-  ^°  a  POI>t,  and  a  captor  so  situated  will  be  apt, 
tured  vessels.  -f  permitted,  to  let  the  prize  go  free  again  for  less 
than  its  worth.  For  these  reasons,  and  in  accordance  with  the 

*  Sir  TV.  S^ott  knew  of  no  instance  where  neutral  courts  exercised  such  jurisdic 
tion,  but  Mr.  Manning  produces  one  from  a  treaty  made  between  Denmark  and 
Qenoa  in  1789.  (P.  381.) 


§  142  AND    REDRESS    OF    INJURIES,    ETC.  241 

practice  of  ransom  formerly  so  common  on  the  land,  it  has 
been,  since  about  the  end  of  the  17th  century,  the  custom  to 
allow  captors  to  liberate  a  captured  vessel  on  an  engagement 
to  pay  a  certain  ransom.  The  receipt  for  the  ransom  is  of  the 
nature  of  a  passport  or  safe  conduct,  and  contains  a  permission, 
good  against  all  cruisers  of  the  belligerent  or  his  ally,  to  pur 
sue  a  certain  voyage.  Only  in  cases  of  necessity  can  the  route 
and  time  laid  down  be  departed  from  without  violating  the 
contract.  The  contract  insures  against  molestation  from  other 
cruisers,  but  not  against  other  kinds  of  hazard,  and  the  ran 
som  would  still  be  binding,  if  nothing  were  said  to  the  contrary, 
in  case  the  vessel  perished  by  the  perils  of  the  seas. 

As  it  is  difficult  to  enforce  the  payment  of  ransom  during 
war,  the  custom  has  prevailed  more  or  less  to  Hostages  to  Becure 
deliver  over  to  the  captor  hostages,  who  might  be  the  ran80m- 
detained  until  the  liquidation  of  the  contract,  and  whose  ex 
penses  were  provided  for  in  the  ransom-bill.  The  hostage 
being  only  collateral  security,  his  death  or  flight  cannot  release 
from  the  contract.  If  the  master  or  owners  refuse  to  fulfil 
their  stipulation,  the  hostage's  remedy  lies  in  an  appeal  to  the 
courts  of  his  own  country. 

If  a  ransomed  vessel  is  captured  out  of  its  course  and  con 
demned,  the  ransom  is  deducted  from  the  proceeds  of  the 
vessel,  and  only  the  remainder  goes  to  the  second  captor.  If 
the  captor's  vessel  is  recaptured,  with  the  ransom-contract,  or 
with  the  hostages,  or  with  both  on  board,  there  is  held  to  be  a 
complete  end  to  all  claim  for  payment.*  If,  on  the  other 
hand,  the  captor's  vessel  is  taken  after  putting  the  ransom-bill 
and  hostage  in  a  place  of  safety,  the  contract  continues  unim 
paired  :  nay,  it  is  held  so  to  continue,  if  the  captor's  vessel  is 
taken,  and  the  securities  for  the  payment  of  ransom  are  con 
cealed  so  as  not  to  come  into  the  actual  possession  of  the  second 
captor.  And,  again,  when  a  captor's  vessel  was  captured  with 
the  hostage  and  ransom-bill  on  board,  in  which  there  was  an 

*  So  Wildman,  II.  273,  after  Yalin.  But  why,  if  the  first  captor  had  transmitted 
the  bill,  retaining  the  hostage  who  is  only  a  collateral  security,  should  not  his  claim 
be  still  good  ? 

16 


24:2  RIGHTS    OF    SELF-DEFENCE  §  143 

agreement  that  payment  should  be  binding  notwithstanding 
such  second  capture,  the  English  courts  decided  that  the  first 
captor,  being  an  alien,  could  not  by  their  laws  bring  a  suit  for 
the  recovery  of  a  right  acquired  in  actual  war.  But  in  this 
case  the  hostage  might  sue,  or  in  case  of  his  death,  the  captor 
after  the  end  of  the  war.* 

The  master  of  a  vessel  being  an  agent  for  the  owners,  they 
are  bound  by  his  act,  when  not  fraudulent  nor  contrary  to 
usage.  But  if  the  ransom  should  exceed  the  value  of  ship  and 
cargo,  it  is  held  that  the  owners  by  surrendering  these  may  be 
free  from  obligation. 

A  ransom  contract  is  valid  under  the  law  of  nations,  al 
though  made  in  war,  since  it  contemplates  a  state  of  war  which 
it  seeks  to  mitigate.  Nevertheless  no  nation  is  bound  to  allow 
its  citizens  to  give  or  receive  ransom-bills.  By  a  French  ordi 
nance  of  1756,  privateers  were  forbidden  to  ransom  a  vessel 
until  they  had  sent  three  prizes  into  port.  The  power  of 
granting  ransom  has  been  taken  away  by  acts  of  parliament 
from  English  cruisers,  except  in  extreme  cases  to  be  allowed 
by  the  courts  of  admiralty.  The  reason  alleged  for  this  legis 
lation  is,  that  captors  might  abuse  their  power  of  ransoming 
vessels  and  injure  neutral  trade, 

§143. 

If  according  to  the  received  right  of  war  a  thing  taken  from 
the  enemy  becomes  the  property  of  the  captor,  it 

Recapture.  .  .  J 

Risrhts    of    the  ought  when  retaken  to  become  the  property  of  the 

original  owner.  &  ,       .    -, 

second  captor.  But  since  the  captor  s  right  comes 
to  him  from  the  state,  the  state  may  decide  how  far  he  shall  be 
rewarded,  if  at  all,  for  his  risks  and  labor  in  retaking  what  had 
belonged  to  a  fellow-subject.  It  seemed  inequitable  that  the 
original  owner  should  wholly  lose  his  right  to  what  had  been 
recently  his  own,  while  the  recaptor,  an  inhabitant  of  the  same 
or  of  a  frieMLy  country,  at  the  end  of  two  acts  of  violence, 
came  into  possession  of  the  same  property.  And  yet  policy  as 
well  as  justice  should  hold  out  a  prospect  of  reward  for  a  re- 

*  Wildman,  II.  275. 


§  143  AND    REDRESS    OF    INJURIES,    ETC. 

« 

capture,  which  the  cruiser  wouJd  otherwise  be  apt  to  shrink 
from,  and  which  brought  with  it  its  hazards.  We  are  led  then 
to  the  questions  when  and  how  far  the  rights  of  the  original 
owner  revert  to  him,  and  to  the  right  of  salvage  or  the  premi 
um  granted  for  recapture.  And  as  the  return  of  property  to 
its  first  owner  appears  in  the  shape  of  the  Roman  doctrine  of 
postliminy,  it  is  necessary  to  explain  briefly  what  the  Roman 
postliminy  was,  and  how  it  differs  from  that  which  is  known 
to  modern  international  law. 

By  ancient  jus  gentium  all  things  seized  by  the  enemy  be 
came  his  property,  and  thus  free  persons  became 

mi        T>  j    j  •*    J«a  postliminii. 

slaves.  The  Romans  regarded  such  a  person,  if 
a  captive  from  among  themselves,  as  suffering  capitis  deminu- 
tio,  or  losing  his  status  of  freedom,  precisely  as  a  foreigner 
would  lose  his,  if  taken  by  Romans.  Suppose  now  such  a  per 
son  to  be  recaptured,  or  ransomed,  or  to  have  escaped,  it  would 
be  hard  to  say  what  was  his  status  on  his  return  to  Rome.  To 
remove  all  difficulty  the  jus  postliminii  *  was  devised,  as  a 
legal  fiction,  according  to  which  he  was  treated  as  not  having 
been  away,  or  at  least  as  having  only  been  absent  from  his 
threshold,  and  all  his  lost  rights  or  rights  in  abeyance  were  re 
stored  to  him.  The  same^s  was  extended  so  as  to  cover  cer 
tain  kinds  of  things  captured  by  the  enemy,  namely,  slaves, 
ships  of  war  and  transport,  mules,  horses  and  land,  which  thus 
returned  on  recapture  to  their  original  owner.  Postliminy  had 
no  application  to  civil  war,  where  the  factions  were  not  enemies 
in  a  political  sense,  nor  to  war  with  pirates,  because  they  were 
robbers,  incapable  of  rights ;  but  only  to  legitimate  war  between 
two  states.  Nor  could  its  advantages  be  open  to  a  deserter  or 
other  betrayer  of  his  post,  or  to  one  whom  the  state  itself  had 
given  up  to  the  enemy.  If  a  free  person,  taken  in  war,  was 
ransomed  by  another,  whose  tie  of  relationship  to  the  captive 
did  not  oblige  him  so  to  act,  his  rights  seem  not  immediately  to 

*  Probably  from  post  in  the  sense  behind,  and  limen  the  threshold.  Comp.  post- 
scenium,  postsignani.  As  postscenium  denotes  the  space  behind  the  scene,  so  might 
postlirninium,  originally,  the  space  behind  the  threshold,  thence  the  fact  of  return 
behind  the  threshold  or  into  the  house. 


244  RIGHTS    OF    SELF-DEFENCE  §143 

« 

have  reverted  to  him  by /ws  postliminii  on  his  return  to  Roman 
soil,  but  he  continued  in  the  relation  to  the  ransomer  not  strict 
ly  of  a  slave,  but  of  one  whose  body  could  be  held  until  the 
ransom  was  paid.  By  a  law  of  the  later  Roman  empire,  five 
years'  service  was  equivalent  to  this  ransom.  If  a  slave  taken 
by  the  enemy  was  thus  ransomed,  he  remained  under  the  ran- 
somer's  control  until  his  ransom  was  paid  by  his  former  master. 
The  ransomer  within  a  certain  time  could  not  refuse  to  restore 
the  slave  on  the  offer  of  the  ransom  money,  and  then  the  jus 
posiliminii  began.* 

It  must  be  regarded  as  a  striking  illustration  of  the  sway  of 
Roman  law  over  the  European  mind,  that  the  lawyers  have 
taken  this  road  to  help  the  first  owner  to  his  property  after  re 
capture.  For  the  application  of  the  modern  postliminy  is  quite 
different  from  that  of  the  Roman.  (1.)  As  to  persons,  freemen 
to  whose  status  it  applied  by  Roman  law  more  than  to  anything 
else,  do  not  lose  their  status  in  modern  times  by  captivity  in 
war.  They  are  absent,  like  travellers  or  merchants,  and  their 
rights  and  obligations  go  on,  as  far  as  personal  presence  is  not 
necessary  for  their  exercise.  It  is  true,  indeed,  that  a  prisoner 
of  war  escaping  from  a  vessel  in  a  neutral  port,  is  protected 
against  recapture  by  this  right,  as  he  would  be  among  the  Ro- 
mans.f  But  two  nations  might,  if  they  pleased,  agree  to  give 
up  such  escaped  captives ;  and  the  not  doing  so  may  be  best  ex 
plained  on  the  ground  that  the  laws  of  one  country  do  not  ex 
tend  into  the  territory  of  another,  and  especially  that  the  laws 
of  a  war  in  which  I  have  no  part,  ought  not  to  affect  my  friend 
or  subject  within  my  borders, — the  principle  in  short  which 
makes  express  conventions  of  extradition  necessary.  And, 

*  I  follow  especially  E.  F.  Hase,  das  jus  postliminii  und  die  fictio  legis  Corneliae. 
Halle,  1851. 

f  Paulus,  in  19,  §  3,  Dig.  XLIX.  15.  "Si  in  civitatem  sociam  amicamve,  aut 
ad  regem  socium  vel  amicum  venerit,  statim  postliminio  redisse  videtur ;  quia  ibi 
primum  nomine  publico  tutus  esse  incipit." — Here  not  simply  a  state  or  king  allied 
in  war,  but  any  non-hostile,  friendly,  or,  as  we  should  say,  neutral  power  is  included. 
This  is  denied  by  Grotius,  III.  9,  §  2,  and  Bynkersh.  Quaest.  J.  P.,  I.  15,  but  such  a 
sense  given  to  amicus  would  restrict  the  postliminy  to  times  of  war,  whereas  Paulus 
is  speaking  generally  of  its  existence  in  war  or  peace.  Comp.  Hase,  p.  68. 


§  143  AND    REDRESS    OF    INJURIES,    ETC.  245 

again,  Eoman  postliminy  applied  to  slaves,  but  as  slavery  is 
not  sanctioned  by  the  modern  law  of  nations  (comp.  §  70,)  it 
can  obtain  no  application  in  regard  to  them. 

As  for  the  private  relations  of  returned  captives,  the  Eo 
man  law  held  marriage  to  cease  with  captivity,  which  is  abhor 
rent  to  Christian  doctrine.  Public  personal  relations  by  mod 
ern  law  continue  after  captivity,  but  the  laws  of  each  state  de 
termine  how  far  their  advantages,  as  salary  during  absence  for 
example,  can  be  claimed  on  return  to  one's  own  country.  The 
Roman  law  refused  to  admit  such  claims.*  (2.)  As  to  the  limit 
of  time  within  which  the  jus  postliminii  takes  effect,  we  are 
not  aware  that  Roman  law  contains  any  definition.  Modern 
usage  gives  complete  possession  of  booty  to  the  enemy  on  land, 
after  he  has  held  it  for  twenty-four  hours,  f  so  that  the  former 
owner  cannot  claim  it  again  from  the  purchaser ;  the  reason  for 
which  limit  is  the  difficulty  of  identifying  such  articles  after  a 
lapse  of  time.  On  the  other  hand,  land  is  restored  to  its  origin 
al  owner,  until  peace  or  destruction  of  national  existence  has 
transferred  sovereignty  to  a  conqueror.  (3.)  By  modern  law 
captured  ships  with  the  goods  on  board,  carried  infra prwsidia 
by  the  enemy  and  condemned,  become  absolutely  his,  so  that, 
if  they  are  afterwards  recaptured  or  repurchased  -by  a  neutral, 
the  former  owner  has  nothing  to  do  with  them  :  their  connec 
tion  with  him  has  wholly  ceased.  It  is  only  in  the  interval  be 
tween  capture  and  complete  possession  that  his  right  of  post 
liminy  continues.  This  was  otherwise  by  Roman  law;  the 
right  affected  all  those  kinds  of  things  which  were  under  its 
operation  at  all,  when  they  came  into  the  power  of  the  enemy, 
and  the  more,  the  more  clearly  they  had  passed  into  his  domi- 
nium.J  (4.)  As  to  limit  of  place  modern  postliminy  takes 

*  Heffier,  §  190. 

f  The  Romans  had  a  practice  often  mentioned  by  Livy  (as  V.  16),  of  bringing 
back  the  booty,  allowing  former  owners  to  take  their  property  back,  and  selling 
the  rest.  Two,  three,  or  thirty  days  were  allowed  for  this  reclamation. 

\  Bynkersh.  Quaest.  J.  P.,  I.  5,  denies  that  there  is  any  postliminy  when  a  vessel 
has  not  been  brought  into  port.  "  Qui  sciunt  quid  postliminium  sit,  sciunt  quoque 
non  esse  nisi  ejus,  quod  in  hostis  dominium  transierat.  Dicendum  erat  [i.  e.  instead 
of  calling  it  by  this  name,]  ante  deductionem  in  portum,  res  non  esse  factas  hostium, 
sed  remansisse  prioris  domini,  recuperatas  igitur  ei  cedere  et  non  recuperatori." 


246  RIGHTS    OF    SELF-DEFENCE  §144 

effect  only  within  the  territory  of  the  captor  or  his  ally, 'with 
the  single  exception  already  mentioned  of  captives  escaping 
ashore  in  a  neutral  port.  But  the  Roman,  it  seems  most  prob 
able,  took  effect  within  the  borders  of  any  friendly  nation. 

A  nation  may  make  what  laws  it  pleases  in  regard  to  the 
recapture  of  the  goods  of  one  of  its  subjects  by  another,  but  is 
bound  to  follow  ihejuspostliminii  in  cases  affecting  the  prop 
erty  of  neutrals. 

§144. 

The  laws  of  some  states  hold  out  special  rewards  to  en- 
Rewards  for  cap-  courage  the  capture  of  vessels,  especially  of  com- 
capetu?end  for  re~  missioned  vessels,  of  their  enemies.  Such  is  the 
head-money  of  five  pounds,  due  under  a  section  of 
the  British  prize  act,  to  all  on  board  an  armed  vessel  acting 
under  public  authority,  for  every  man  on  board  of  a  similar 
captured  vessel  who  was  living  at  the  beginning  of  the  engage 
ment.  Such,  too,  in  a  sense,  are  the  advantages  given  to  other 
vessels  which  have  assisted  the  capturing  one,  or  even  started 
to  render  assistance.*  But  the  claim  for  compensation  is  far 
more  reasonable  when  the  crew  of  one  vessel  have  saved  an 
other  and  its  goods  from  pirates,  lawful  enemies  or  perils  of  the 
seas.  This  is  called  salvage,  and  answers  to  the  claim  for  the 
ransom  of  persons  which  the  laws  of  various  nations  have  al 
lowed.  The  legislation  of  a  particular  state  may  withhold  sal 
vage  from  its  citizens  or  subjects,  but  cannot  deprive  a  neutral 
or  an  ally  of  the  exercise  of  this  right. 

The  laws  of  different  nations  vary  in  the  amount  of  reward 
Amount  of  sai-  which  they  assign  to  the  rescuer  of  vessels.  In 
regard  to  the  salvage  to  be  paid  to  our  recaptors 
or  rescuers  by  the  owners  of  foreign  vessels  and  goods,  the  law 
of  the  United  States  adopts  the  principle  of  reciprocity,  meas 
uring  the  amount  by  that  which  is  paid  by  the  law  of  the  state 
to  which  the  vessel  belongs.  In  regard  to  the  amount  to  be 
paid  by  citizens  or  resident  foreigners  the  law  contains  various 
provisions,  of  from  one  half  to  one  twelfth  of  the  value ;  more 

*  Wildman,  H.  321-326. 


g  145  AND    REDRESS    OF    INJURIES,    ETC.  247 

being  granted  for  the  salvage  of  an  armed  vessel  recaptured, 
than  of  an  unarmed,  and  more  to  a  private  vessel  recapturing 
than  to  a  public  armed  vessel.  In  no  case  is  salvage  allowed, 
if  the  recapture  occurs  after  condemnation  by  a  competent  au 
thority,  since  the  property  is  regarded  as  having  passed  over 
from  the  original  owner  to  the  captor.  The  provisions  of  the 
law  of  the  most  important  nations  are  given  at  length  by  Dr. 
Wheaton.  (El.  IY.  2,  §  12,  419-424.) 

§145. 

"  Eecte  dixit  Grotius,"  *  says  Bynkershoek,  "  postliminium 
etiam  in  integris  populis  locum  habere,  ut,  inquit,  Effrict  of  tempo. 
qui  liberi  fuerunt,  suam  recipiant  libertatem,  si  rary  cou^uests- 
forte  eos  vis  sociorum  eximat  hostili  imperio."  (Quest.  J.  P., 
I.  16.)  A  state,  after  temporary  occupation  or  after  the  short 
lived  government  of  a  conqueror,  may  be  restored  to  its  pris 
tine  condition.  Such  was  the  "case  with  Holland,  part  of  Ger 
many  and  Spain  in  the  times  of  Napoleon.  The  interruption 
of  former  rights  and  the  actions  of  the  conqueror  give  rise  to 
several  perplexing  questions  in  regard  to  the  condition  of  such 
a  country  ;  and  as  occupation  is  separated  by  no  very  distinct 
limits  from  "  defoliation  "  or  complete  conquest,  or  at  least  as 
the  occupier  sometimes  acts  the  conqueror,  hereby,  perhaps, 
the  perplexity  is  increased.  "We  follow  Heffter  (§  188)  prin 
cipally,  in  our  brief  representation  of  the  rights  and  obligation 
of  a  state  restored  in  this  postliminary  way. 

Such  restoration  follows,  as  a  matter  of  course,  whenever 
the  conquering  occupant  by  treaty  abandons  his  conquests  or  is 
driven  out,  whether  by  the  inhabitants  or  by  an  ally.  But  if 
a  third  party  dispossesses  the  conqueror,  the  state  cannot,  ac 
cording  to  international  justice,  recover  its  independent  exist 
ence  without  his  consent,  although  this  may  be  demanded  by 
equity  or  humanity. 

If  mere  occupation,  without  the  assumption  of  the  attri 
butes  of  government  had  taken  place,  everything  goes  back  to 

*  Hi.  9,  §  9. 


24:8  RIGHTS    OF    SELF-DEFENCE  §145 

to  the  old  state.  The  restored  regime  can  claim  even  from  al 
lies  and  neutrals  property  which  had  passed  over  to  them  from 
the  occupier,  so  far  as  the  right  of  war  gave  him  no  power  to 
dispose  of  them. 

If  the  occupant  conqueror  set  up  and  carried  on  a  new 
government,  then 

1.  None  of  his  changes  in  the  earlier  constitution,  no  mode 
of  administration,  officer  or  law,  has  any  claim  to  permanence. 

2.  ~No  retroactive  exercise  of  the  powers  of  government, 
affecting  subjects  or  third  persons,  rightfully  belongs  to  the 
restored  regime,  so  far  as  relations  are  concerned  which  per 
tained  to  the  period  of  occupation.     Thus  taxes  for  the  interim 
cannot  properly  be  collected,  on  the  ground  that  they  would 
have  been  due  to  the  old  government  if  the  occupation  had 
not  taken  place.     For  the  rights  of  sovereignty,  so  far  as  they 
pertained  to  the  old  regime,  had  in  fact  passed  over  into  the 
hands  of  the  new. 

3.  Whatever  the  government  by  conquest  did  in  the  legiti 
mate  exercise  of  political  power  is  valid.     The  new  govern 
ment  succeeds  to  it  in  its  acquisitions  and  obligations,  and  can 
not  set  aside  its  doings  on  the  ground  that  it  had  no  right  to 
exist.     Thus  what  was  due  to  the  usurping  government  in 
back-standing  taxes,  what  it  acquired  by  treaty  or  otherwise, 
belongs  to  its  successor.     On  the  other  hand,  if  that  govern 
ment  disposed  of  state  property,  or  contracted  state  debts,  its 
proceedings  here  also  are  valid,  inasmuch  as  it  represented  the 
state.     This  has  been  denied,  but  not  with  justice,  except  in 
those  extreme  cases,  where  the   temporary  government  had 
alienated  property  or  borrowed  money  not  in  the  exercise  of 
political  authority  nor  for  public  purposes,  but  with  the  spirit 
of  a  plunderer.     (Comp.  §  38,  §  99.) 


§146  AND    REDRESS    OF   INJURIES,    ETC.  249 


SECTION  V. — Of  the  Suspension  and  the  Termination  of  War, 
especially  of  Truce  and  of  Peace. 

§146. 

The  possibility  of  intercourse  in  war  depends  on  the  con 
fidence  which  the  belligerents  repose  in  each 

.       ,  1    /»  •  -i     i  •  t*  -\  i  Intercourse        in 

other  s  good  faith,  and  this  confidence,  on  the  un-  war.    i.  for  the 

IT  i  T-I  -r»       i  purposes  of  war. 

changeable  sacredness  of  truth.  Even  J3ynker- 
shoek  who  allows  every  kind  of  violence  and  every  kind  of 
craft  has  to  say,  in  words  already  cited,  "  ego  quidem  omnem 
dolum  permitto,  sola  perfidia  excepta."  (Quaest.  J.  P.,  I.  1.) 
That  faith  should  be  kept  with  heretics  has  been  denied,  but 
no  one  has  maintained  that  it  is  not  to  be  kept  with  enemies.* 

Such  being  the  undoubted  principle  of  obligation  in  war  as 
well  as  in  peace,  war  is  enabled  to  put  on  a  milder  form  for 
that  reason,  and  to  interrupt  its  violence  for  a  time  either  to 
wards  particular  persons  or  entirely.  Among  these  intermis 
sions  of  war  are  to  be  enumerated : 

1.  The  commercia  l)elli,  to  which  we  have  already  referred 
(§  134),  and  of  one  of  which,  ransom-contracts,  we  have  spoken 
at  large  (§  142).  Some  conventions  in  war  have  a  lasting  oper 
ation,  as  determining  how  the  war  shall  be  carried  on,  what 
kinds  of  arms  shall  be  accounted  unlawful,  how  prisoners  shall 
be  treated  and  the  like,  or  as  placing  certain  persons  or  places 
in  a  relation  of  neutrality  to  both  parties.  Others  are  transi 
tory  and  special,  as  contracts  relating  to  requisitions,  to  ransom, 
to  exchange  of  prisoners,  and  to  capitulations.  Prisoners  are 
generally  exchanged  within  the  same  rank  man  for  man,  and  a 
sum  of  money  or  other  equivalent  is  paid  for  an  excess  of  them 
on  one  side.  Capitulations  formerly  were  often  made  on  the 
condition  of  not  being  relieved  by  a  certain  day.  They  are 
usually  formal  agreements  in  writing  between  the  officers  in 
command  on  both  sides,  who  have,  unless  the  power  is  taken 
from  them  with  the  knowledge  of  the  other  party,  power  to 
make  all  such  arrangements. 

*  Comp.  Heffler,  §  141. 


250  RIGHTS    OF   SELF-DEFENCE  §  HI 

§147. 

2.  Next  to  these  may  be  classed  permissions  given  to  indi- 
2.  Licenses  to  viduals  which  suspend  the  operations  of  war.  as 

trade.     Bafe  con-  r 

ductB.  far  as  their  persons  are  concerned,  for  the  purpose 

of  enabling  them  to  perform  a  work  of  peace.  These  modes 
of  plighting  faith  are  not  necessary  for  the  conduct  of  the  war. 

One  of  these  is  licenses  to  trade  with  the  enemy.  A  license 
to  trade  with  the  enemy  being  an  exception  to  the  ordinary 
rules  of  war  is  to  be  strictly  interpreted,  and  yet,  where  there 
has  been  evident  good  faith  in  following  it,  slight  deviations 
will  not  be  noticed.  If  the  person,  the  port  or  town,  the  kind 
and  quality  of  the  goods,  the  limits  of  time,  are  prescribed  in 
the  license,  departures  from  its  terms,  with  the  exception  of 
unavoidable  delay,  will  make  it  void.  Thus  it  has  been  de 
cided  that  a  license  to  neutral  vessels  becomes  void  when  hos 
tile  vessels  or  those  of  the  country  giving  the  license  are  sub 
stituted  for  them ;  that  a  license  to  import  will  not  cover  re 
exportation  ;  that  one  prescribing  a  certain  course  of  navigation 
is  avoided  by  voluntary  departure  from  such  course ;  that  a 
license  to  sail  in  ballast  is  forfeited  by  carrying  part  of  a  cargo, 
or  to  import  certain  articles  will  not  protect  other  articles,  not 
named,  although  destined  for  a  neutral  port,  or  again  to  pro 
ceed  to  a  certain  port  is  vitiated  by  calling  at  an  interdicted 
port  for  orders.  A  general  license  to  sail  to  any  port  will  not 
include  a  blockaded  one,  which  is  shut  by  higher  laws  of  war. 
A  license  although  it  has  expired  will  protect  in  case  of  un 
avoidable  hindrances.  No  consul  and  no  admiral,  according 
to  English  doctrine,  can  give  a  license,  which  is  a  high  act  of 
sovereignty,  without  authority  of  the  government.*  A  license 
protects  against  all  cruisers  of  the  enemy,  but  not  against  any 
action  of  the  country  to  which  the  licensed  person  or  vessel 
pertains.  (Comp.  §  117.) 

Passports  and  safeguards,  or  safe  conducts,  are  letters  of 
Safe  uard  and  protection,  with  or  without  an  escort,  by  which 
passports.  ^he  person  of  an  enemy  is  rendered  inviolable. 

*  These  and  many  more  particular  cases  touching  the  interpretation  of  licenses 
by  the  English  courts  may  be  found  in  Wildman,  II.  245-269. 


§  148  AND    REDRESS    OF    INJURIES,    ETC.  251 

These  may  be  given  in  order  to  carry  on  the  peculiar  commerce 
of  war,  or  for  reasons  which  have  no  relation  to  it,  which  termi 
nate  in  the  person  himself.  As,  like  licenses,  they  are  exceptions 
to  the  non-intercourse  of  war,  they  are  stricti  juris,  as  far  as  re 
lates  to  the  person,  the  time  of  his  sojourn,  his  route  and  resi 
dence,  and  in  a  degree  to  his  effects  and  attendants.  If  he  remain 
beyond  the  prescribed  time  with  no  inevitable  necessity  from 
illness  or  other  cause,  he  can  be  treated  as  a  captive.  If  he  is 
discovered  in  intrigues  his  passport  is  vitiated.  If  he  acts  as  a 
spy,  of  course  he  forfeits  the  right  of  protection  ;  for  he  is  thus 
committing  an  act  of  hostility,  whether  the  officer  who  gave 
him  the  passport  is  privy  to  his  designs  or  not.  Arnold's  pass 
could  be  of  no  avail  to  Andre,  when  once  his  true  character 
was  brought  to  light. 

§148. 

3.  A  temporary  suspension  of  the  operations  of  war  at  one 
or  more  places  is  called  a  truce  or  armistice.*  A  Truce  or  armla. 
truce  may  be  special  referring  to  operations  be-  tice- 
fore  a  fortress  or  in  a  district,  or  between  certain  detachments 
of  armies,  or  general,  implying  a  suspension  of  hostilities  in  all 
places.  A  general  truce  can  be  made  only  by  the  sovereign 
power  or  its  agents,  specially  empowered  for  this  purpose.  A 
special  or  partial  truce  may  be  concluded  according  to  the 
usage  of  nations  by^  a  military  officer,  even  by  a  subordinate 
one  within  his  district.  This  usage  rests  on  the  consideration 
that  both  policy  and  humanity  require  that  such  a  discretion 
ary  power  should  be  lodged  in  those  who,  being  on  the  spot, 
can  best  understand  the  exigencies  of  the  case.  If  an  officer 
should  be  restricted  in  the  use  of  this  power  contrary  to  usage, 
and  yet  should  exercise  it,  his  agreement,  at  least  if  not  cor 
ruptly  made,  would  be  binding  on  his  sovereign,  provided  that 
the  other  party  knew  nothing  of  the  restriction.  For  that 

*  Truce,  in  mediaeval  Latin  treuga,  in  Ital.  tregua,  properly  denotes,  according  to 
Dietz,  security,  pledge,  and  is  the  same  with  Gothic  triggva,  old  German  triuwa, 
French  treve.  In  old  French  true,  in  Anglo-Norman  trewe,  has  this  sense.  Can 
truce  be  the  plural  of  true  or  trewe — inducice  ?  Armistice,  not  used  in  Latin,  but 
formed  analogically,  is,  we  "believe,  quite  a  modern  word. 


252  RIGHTS   OF   SELF-DEFENCE  §149 

party  had  a  right  to  infer  from  prevalent  usage  and  the  nature 
of  the  command  intrusted  to  him  that  he  had  this  power. 

§149. 

A  truce  is  binding  on  the  parties  to  it  from  the  time  when 
Time  when  a  *neJ  nave  agreed  to  its  terms,  but  on  private  per- 
truce  begins.  gons  from  ^he  time  when  intelligence  of  it  can 
have  reasonably  reached  them.  For  injuries  inflicted  in  the 
interval  tj^e  sovereign  of  the  injurer  is  responsible.*  When  a 
general  suspension  of  arms  is  agreed  upon,  it  is  not  unusual  to 
provide  that  it  shall  take  effect  in  different  portions  of  the 
theatre  of  war  or  parts  of  the  world  at  different  times,  so  as  to 
afford  opportunity  to  give  notice  of  it  to  all  who  are  concerned 
in,  or  whose  business  is  affected  by  the  war. 

A  truce  being  in  itself  a  mere  negation  of  hostilities,  it  is  a 
what  can  be  done  ^tle  difficult  to  say  what  may,  or  may  not,  be 
done  during  its  continuance.  The  following  rule, 
if  we  are  not  deceived,  expresses  the  views  of  most  text-writers : 
that  the  state  in  which  things  were  before  the  truce  is  so  far  to 
be  maintained  that  nothing  can  be  done  to  the  prejudice  of 
either  party  by  the  other,  which  could  have  been  prevented  in 
war,  but  which  the  truce  gives  the  power  of  doing.  But  may 
a  besieged  place,  during  a  truce,  repair  its  walls  and  construct 
new  works  ?  This,  which  Wheaton  after  Yattel  denies,  is  af 
firmed  by  Heffter  (u.  s.),  after  Grotius  and  Puffendorf.f  lieff- 
ter  also  declares  it  to  be  unquestioned  that  the  besieger  cannot 
continue  his  works  of  siege,  thus  giving  to  the  besieged  in  any 
partial  truce  the  advantage  over  his  foe.  The  question  is 
whether  to  strengthen  works  of  offence  or  of  defence  is  an  act 
of  hostility,  and  is  consistent  with  a  promise  to  suspend  hostili 
ties.  It  would  appear  that  neither  party  can  act  thus  in  good 
faith,  unless  it  can  be  shown  that  the  usages  of  war  have 
restricted  the  meaning  of  truce  to  the  suspension  of  certain 
operations.  The  rule  then  laid  down  by  Yattel,  and  which  he 

*  Heffter,  §  142. 

f  Grotius,  HI.  21,  §  7 ;  Puffend.  VIII.  7,  §  10.    Cocceii  on  Grot.  u.  s.  §  10, 
denies  it.    So  Vattel,  IH.  16,  §  247 ;  Wheaton,  El.  IV.  2,  §  22. 


§  150  AND    REDRESS   OF   INJURIES,   ETC.  253 

is  obliged  to  qualify  by  several  others,  namely  that  each  may 
do  among  themselves,  that  is,  within  their  own  territories  or 
where  they  are  respectively  masters,  what  they  would  have  the 
right  to  do  in  peace,  is  true  only  of  the  general  operations  of 
war.  A  power  may  use  the  interval  in  collecting  its  forces, 
strengthening  its  works  which  are  not  attacked,  and  the  like. 
But,  when  we  come  to  the  case  of  besieged  towns,  the  question 
is  of  what  are  the  two  parties  masters,  and  various  quibbles 
might  be  devised  to  allow  either  of  them  to  do  what  he  pleased. 
The  governor  of  a  town,  says  Yattel,  may  not  repair  breaches 
or  construct  works  which  the  artillery  of  the  enemy  would 
render  it  dangerous  to  labor  upon  during  actual  siege,  but  he 
may  raise  up  new  works  or  strengthen  existing  ones  to  which 
the  fire  or  attacks  of  the  enemy  were  no  obstacle.  Why,  if 
this  be  so,  may  not  the  besiegers  strengthen  their  works  which 
are  not  exposed  to  the  guns  of  the  fortress  ? 

"When  a  truce  is  concluded  for  a  specified  time,  no  notice  is 
necessary  of  the  recommencement  of  hostilities.* 

T-,  IT  /»       i       •        ,  -i  i       End  of  a  truce. 

livery  one  wno  lingers  ireely  in  the  enemy  s 
country  or  within  his  lines,  after  this  date,  is  obnoxious  to  the 
law  of  war.     But  forced  delay  on  account  of  illness,  or  other 
imperative  reason,  would  exempt  such  a  one  from  harsh  treat 
ment. 

§150. 

A  peace  differs  not  from  a  truce  essentially  in  the  length 
of  its  contemplated  duration,  for  there  may  be 

.r  '  J  .  Peace,  what? 

very  long  armistices  and  states  of  peace  continuing 
only  a  definite  number  of  years.  The  ancients  often  concluded 
treaties  of  peace  which  were  to  expire  after  a  certain  time : 
thus  one  of  the  oldest  monuments  of  the  Greek  language  con 
tains  a  treaty  of  alliance  for  a  century  between  Elis  and  a 
town  of  Arcadia ;  the  Acarnanians  concluded  a  treaty  of  peace 
and  alliance  for  the  same  number  of  years ;  and  a  thirty  years' 

*  The  Romans  gave  such  notice  to  the  Vejentes  (Livy,  IY.  30)  by  the  usual 
ceremony.  (§  115.)  But  they  seem  to  have  rarely  been  at  peace  with  the  Etruscan 
States,  truce  taking  its  place,  and  so  adopting  its  ceremonies. 


254:  RIGHTS    OF    SELF-DEFENCE  §  i50 

peace  between  Athens  and  Sparta  was  not  half  finished  when 
the  Peloponnesian  war  broke  out.  But,  while  an  armistice  is 
an  interval  in  war  and  supposes  a  return  to  it,  a  peace  is  a 
return  to  a  state  of  amity  and  intercourse,  implying  no  inten 
tion  to  recommence  hostilities.  An  armistice  again  leaves  the 
questions  of  the  war  unsettled,  but  a  peace  implies  in  its  terms 
that  redress  of  wrongs  has  been  obtained,  or  that  the  intention 
is  renounced  of  seeking  to  obtain  it. 

The  conclusion  of  a  peace  being  one  of  the  most  important 
Treaties  of  peace  ac^s  °^  sovereignty,  it  is  naturally  carried  on  with 

in  general.  ^  ^    form£lities  with    Which    the    UlOSt    Solemn 

treaties  of  other  kinds  are  adjusted.  Sometimes  the  general 
basis  on  which  the  two  parties  will  consent  to  be  at  peace  is 
laid  down  long  before  the  details  are  arranged.  The  first 
agreements  are  called  preliminaries,  and  a  peace  at  this  stagers 
a  preliminary  peace  in  contrast  with  the  definitive  peace.  The 
preliminary  peace  is  binding  from  the  time  it  is  signed,  although 
its  provisions  may  be  altered,  by  mutual  consent,  before  the 
final  negotiations  are  completed.  As  examples  of  such  prelim 
inary  treaties,  we  may  mention  the  treaty  of  Yienna,  in  1735, 
the  peace  of  Breslau,  of  June  11, 1742,  that  of  Aix-la-Chapelle, 
of  April  30,  1748,  that  of  Paris  between  England  and  the 
United  States,  Nov.  30,  1782,  and  that  of  Versailles  between 
Great  Britain  on  the  one  part,  and  France  and  Spain  on  the 
other,  Jan.  20,  1783.  (Append.  II.  under  the  years.) 

Sometimes  after  a  treaty  has  been  drawn  up,  separate 
articles  are  added,  which  are  declared  to  be  as  binding  as  the 
treaty  itself.  These  articles  may  be  public  or  secret,  the  latter 
being  kept  from  the  world  on  account  of  their  nature  or  the 
circumstances  of  the  parties,  although  generally  unearthed  by 
foreign  courts.  "When  several  powers  unite  in  a  treaty  of 
peace,  it  is  done  either  by  the  union  of  all  as  principals  in  one 
treaty ;  or  by  separate  treaties  of  each  with  his  enemy,  in  which 
case  there  is  no  common  obligation,  unless  these  treaties  are 
made  common  by  an  express  agreement ;  or  finally  a  power 
becomes  an  accessory  to  a  treaty  already  made,  thus  taking  on 
itself  the  rights  and  obligations  of  a  principal.* 

*  De  Martens,  §  336. 


§  150  AND    REDRESS    OF    INJURIES,    ETC.  255 

"  In  a  treaty  of  peace,  also,  the  interests  of  powers  can  be 
included  which  took  no  direct  part  in  the  war,  but  were  either 
auxiliaries,  or  at  least  had  some  interest  or  other  in  the  war  or 
the  peace.  It  may  be  (1.)  that  one  of  the  principal  contract 
ing  powers  stipulates  something  in  their  favor,  whether  by 
comprehending  them  in  the  treaty, — so  that  the  peace  and 
amity  shall  extend  to  them  without  thereby  rendering  them 
principal  contracting  powers, — or  by  inserting  a  particular 
point  in  their  favor  ;  in  which  case  it  is  not  necessary  that  they 
formally  signify  their  acceptance.  Or  (2.)  to  the  treaty  may 
be  added  conventions  concluded  with  or  between  such  states, 
which  conventions  are  declared  to  be  parts  of  the  principal 
document.  Or  (3.)  third  powers  may  be  invited  to  accede, 
either  with  a  view  to  obtain  their  consent  or  to  do  them  honor. 
And,  on  the  other  hand,  sometimes  third  powers  protest 
formally  against  a  treaty  of  peace,  or  against  one  or  other  of 
its  articles,  and  hand  over  such  act  of  protestation  to  the 
principal  contracting  powers."*  Thus  the  Pope  protested 
against  the  peace  of  Westphalia,  and  with  the  King  of  Spain 
against  the  final  act  of  the  congress  of  Yienna. 

Every  nation  has  a  right  to  employ  its  own  language  in 
treaties  whether  of  peace  or  made  for  any  other  purpose.  The 
Latin  was  the  language  chiefly  employed  in  treaties  until  the 
18th  century.  •  The  treaties  of  Westphalia,  for  instance,  of 
Nymwegen,  of  Ryswick,  and,  in  the  next  century,  of  Utrecht 
and  Rastadt,  were  composed  in  it.  The  communications  of 
Turkey  with  European  powers  are  written  in  Turkish,  but  with 
a  Latin  or  French  translation  accompanying  them .  The  prevail 
ing  language  of  diplomacy  in  the  18th  century,  and  since,  has 
been  the  French,  of  the  use  of  which  between  the  states  of  the 
German  Empire,  the  peace  of  Breslau,  in  1742,  is  said  to  afford 
the  first  example.  But  of  late  the  German  powers  use  their 
own  language  more  than  formerly  in  their  treaties  with  one 
another.  England  and  the  United  States  naturally  employ  their 
common  tongue  in  intercourse  with  one  another,  and  have  been 
more  or  less  in  the  practice  of  making  use  of  both  English  and 

*  From  De  Martens,  u.  s. 


256  RIGHTS    OF   SELF-DEFENCE  §  151 

French  in  treaties  with  other  nations ;  but  this  practice  has  its 
inconveniences,  for  disputes  can  easily  arise  where  two  contem 
porary  documents  of  equal  authority  differ,  as  will  be  apt  to 
be  the  case,  in  their  shades  of  thought.  The  original  of  the 
treaty  of  1774  between  Turkey  and  Eussia  is  in  Italian.  In 
several  treaties  expressed  in  French  a  protest  is  inserted  that 
the  use  of  this  language  shall  not  be  regarded  as  a  precedent 
for  the  future.  Such  is  the  case  with  the  treaty  of  Aix-la- 
Chapelle  (1748),  that  of  Paris  (1763),  and  the  final  act  of  the 
congress  of  Yienna  in  1815.  Our  treaty  of  alliance  with 
France  (1778),  and  the  treaty  of  cession  of  Louisiana  (1803,) 
contain  each  a  declaration  that  although  the  treaty  has  been 
written  in  both  French  and  English,  the  French  copy  is  the 
original. 

§151. 

The  same  thing  is  true  of  treaties  of  peace  as  of  all  other 
conventions,  that  they  are  of  no  validity  where 

Restrictions     on       .  <•     •  •, 

the  power  to  make  the  government  exceeds  its  constitutional  powers 
in  making  them.  (Comp.  §  99.)  Besides  this 
there  is  a  moral  restriction,  where  nations  have  been  allies  in 
war.  If  a  treaty  of  alliance  requires  the  parties  to  it  to  co 
operate  in  war  until  a  certain  end  is  gained,  nothing  but  an 
extreme  necessity,  such  as  the  hopelessness  of  future  exertion, 
can  authorize  one  of  the  parties  to  make  a  peace  with  the 
common  enemy.  Even  if  the  terms  of  alliance  for  .the  purposes 
of  war  are  less  definite,  it  is  dishonorable  for  an  ally,  above  all 
for  a  principal  party,  to  desert  his  confederates  and  leave  them 
at  thev mercy  of  the  foe.  Allies  may  make,  each  his  own  peace, 
and  obtain  special  concessions,  but  they  are  bound  in  good  faith 
to  act  together,  and  to  secure  one  another,  as  far  as  possible, 
against  a  power  which  may  be  stronger  than  any  of  them  sep 
arately.* 

*  Yattel  IV.,  2,  §  15,  16. 


§  152  AND    KEDRESS    OF    INJURIES,    ETC.  257 

§152. 

Although  a  peace  is  a  return  to  a  state  of  amity,  and,  among 
civilized  nations,  of  intercourse,  the  conditions  on  Effect  of  treatie8 
which  intercourse  is  conducted  may  not  be  the  of  peace- 
same  as  before  the  war.  If  a  treaty  contained  no  other  agree 
ment  than  that  there  should  be  peace  between  the  parties,  per 
haps  there  would  be  a  fair  presumption  that  everything  was 
settled  again  on  its  old  basis,  the  cause  of  war  alone  being  still 
unsettled.  But  treaties  usually  define  anew  the  terms  of  in 
tercourse.  The  general  principles  which  govern  the  renewal 
of  intercourse  cannot  be  laid  down,  until  it  is  first  known  what 
the  effect  of  a  war  is  upon  previous  treaties. 

A  war  then  puts  an  end  to  all  previous  treaties,  except  (1.) 
so  far  as  they  restrict  the  action  of 'the  war  itself.  Stipulations, 
which  contemplate  a  state  of  war,  are  evidently  not  annulled 
'  by  a  state  of  war,  otherwise  they  are  in  themselves  nugatory 
and  incapable  of  fulfilment.  They  are  binding,  that  is,  in  war, 
just  as  ordinary  treaties  are  binding  in  peace.  If  one  party 
violate  them,  the  other  may  practise  retorsion  (§  114),  or  re 
gard  them  as  no  longer  in  force.*  Thus  an  agreement  not  to 
employ  privateers  in  war,  or  not  to  levy  contributions,  or  not 
to  use  submarine  torpedoes,  or  to  allow  each  other's  commercial 
marine  undisturbed  use  of  the  seas  for  certain  purposes,  is  good 
through  all  time,  unless  dissolved  by  mutual  agreement..  But 
all  other  arrangements  formerly  existing,  especially  of  the  na 
ture  of  privileges  conceded  by  either  party  to  the  other,  it  is 
optional  to  resume  or  not.  If  nothing  is  said  in  the  treaty 
about  them,  they  are  understood  to  have  expired.  Thus,  our 
former  privilege  of  using  certain  coasts  belonging  to  Great 
Britain  for  the  purpose  of  drying  fish,  was  cut  off  by  the  w^ar 
of  1812,  and  as  no  notice  was  taken  of  it  in  the  treaty  of  Ghent 
(Append.  II.  and  §  55),  it  had  no  existence. 

2.  Another  exception  to  the  rule  that  war  puts  an  end  to 
treaties,  is  found  in  those  agreements,  which  are  in  their  own 
nature  perpetual.  Thus,  after  the  war  of  1812,  no  new  recog- 

*  Comp.  Heffier,  §  122. 

17 


258  EIGHTS    OF    SELF-DEFENCE  §  152 

nition  of  our  independence  by  Great  Britain  was  necessary. 
Even  if  the  war  and  the  treaty  of  Ghent  had  not  been  recogni 
tions  of  our  national  existence  as  a  war-making  and  peace 
making  power,  the  acknowledgment  of  our  independence  a 
generation  before,  was  an  admission  that  we  formed  a  perma 
nent  state.  So,  too,  cessions  of  territory,  adjustments  of  boun 
daries  and  the  like,  so  far  as  the  war  does  not  relate  to  them, 
are  by  their  nature  arrangements  made  once  for  all,  not  liable 
to  be  called  into  question  in  every  new  dispute  ;  and  the  state 
within  such  limits  is  a  perfect  moral  person.* 

3.  It  is  held  by  Yattel,  that  a  new  war  for  a  new  cause,  not 
involving  a  breach  of  existing  treaties,  does  not  put  an  end  to 
the  rights  acquired  by  such  treaties,  which  are  thus  only  sus 
pended,   to   come   into  validity   again   when  peace  returns, 
whether  confirmed  by  it  or  not.     This  rule,  which  would  be  a 
very  important  one  if  admitted,  and  yet,  perhaps,  one  attended 
with  practical  difficulties,  is  not,  so  far  as  we  are  informed,  in 
sisted  on  by  later  text-writers,  nor  introduced  into  the  code  of 
nations.     The  general  practice  is,  in  a  new  treaty  after  a  war, 
to  make  mention  of  all  the  old  ones  which  the  parties  wish  to 
keep  in  force,  and  which  thus  become  incorporated  in  it.     Na 
tions  ought  by  all  means  to  do  this  in  order  to  prevent  misun 
derstandings,  and  cut  off  occasions  for  new  wars. 

4.  Such  is  the  case  as  far  as  public  rights  are  concerned. 
But  private  rights,  the  prosecution  of  which  is  interrupted  by 
war,  are  revived  by  peace,  although  nothing  may  be  said  upon 
the  subject ;  for  a  peace  is  a  return  to  a  normal  state  of  things, 
and  private  rights  depend  not  so  much  on  concessions,  like 
public  ones,  as  on  common  views  of  justice.     And  here  we  in- 

*  Comp.  Vattel,  II.  §  192,  and  Wheaton,  El.  III.  2,  §  9,  who  calls  such  arrange 
ments  transitory  conventions,  as  distinguished  from  treaties. — The  principle  laid 
down  in  the  text  is  well  expressed  in  the  treaty  between  the  United  States  and 
Mexico,  made  in  1848  (Art  xxii.) :  "And  it  is  declared  that  neither  the  pretence 
that  war  dissolves  all  treaties  nor  any  other  whatever  shall  be  considered  as  annul 
ling  or  suspending  the  solemn  covenant  contained  in  this  article.  On  the  contrary, 
the  state  of  war  is  precisely  that  for  which  it  is  provided ;  and  during  which  its 
stipulations  are  to  be  as  sacredly  observed  as  the  most  acknowledged  obligations 
under  the  law  of  nature  or  nations.1' 


§  153  AND    REDRESS    OF    INJURIES,    ETC.  259 

elude  not  only  claims  of  private  persons,  in  the  two  countries, 
upon  one  another,  but  also  claims  of  individuals  on  the  govern 
ment  of  the  foreign  country,  and  claims — private  and  not  po 
litical — of  each  government  upon  the  other  existing  before  the 
war. 

§153. 

5.  The  effect  of  a  treaty  on  all  grounds  of  complaint  for 
which  a  war  was  undertaken,  is  to  abandon  them.  Or,  in  other 
words,  all  peace  implies  amnesty,  or  oblivion  of  past  subjects  of 
dispute,  whether  the  same  is  expressly  mentioned  in  the  terms 
of  the  treaty,  or  not.     They  cannot,  in  good  faith,  be  revived 
again,  although  a  repetition  of  the  same  acts  may  be  a  righteous 
ground  of  a  new  war.     An  abstract  or  general  right,  however, 
if  passed  over  in  a  treaty,  is  not  thereby  waived.* 

6.  If  nothing  is  said  in  a  treaty  to  alter  the  state  in  which 
the  war  actually  leaves  the  parties,  the  rule  of  uti possidctis  is 
tacitly  accepted.     Thus,  if  a  part  of  the  national  territory  has 
passed  into  the  hands  of  an  enemy  during  war,  and  lies  under 
his  control  at  the  peace  or  cessation  of  hostilities,  it  remains 
his,  unless  expressly  ceded. 

7.  So,  too,  if  a  fortress  or  port  is  ceded  by  treaty,  it  must 
be  ceded  in  the  state  in  which  the  treaty  finds  it.     Good  faith 
requires  that  it  should  not  be  dismantled  or  blocked  up  after 
that  event. 

8.  When  a  treaty  cedes  to  a  conqueror  a  part  of  the  terri 
tory  of  a  nation,  the  government  is  under  no  obligation  to  in 
demnify  those  who  may  suffer  by  the  cession.f    What  the  con 
queror  acquires  in  such  a  case  is  the  sovereignty.      The  old 
laws  continue  until  repealed  by  the  proper  authorities.  Private 
rights  remain,  or  ought  to  remain,  unimpaired. 

The  question  may  be  asked,  whether  the  party  making  such 
a  cession  of  inhabited  territory  is  under  any  pledge  to  secure 
the  new  comer  in  possession.  Or  in  other  words,  must  the  for 
mer  do  anything  beyond  renouncing  his  rights  of  sovereignty 

*  Comp.  Kliiber,  §  324 ;  WhesrtoA,  IV.  4,  §  3. 
f  Kent,  I.  178,  Lect.  VIII. 


260  RIGHTS    OF    SELF-DEFENCE,    ETC.  §154 

over  the  territory,  and  leaving  it  free  and  open  to  the  new  sov 
ereign.  To  us  it  appears  that  this  is  all  he  is  bound  to  do.  If, 
then,  the  inhabitants  should  resist  and  reject  the  new  sovereign, 
as  they  have  an  undoubted  right  to  do, — for  who  gave  any 
state  the  right  to  dispose  of  its  inhabitants, — the  question  now 
is  to  be  settled  between  the  province  or  territory  and  the  con 
queror.  (Comp.  §  52.) 

§154 

A  treaty  of  peace  begins  to  bind  the  parties  when  it  is  signed 
(§  107,  §  149),  and  to  bind  individuals  of  the  two  belligerent 
nations  when  they  are  notified  of  its  existence.  (Comp.  §  149.) 
Injuries  done  meanwhile  must  be  made  good  by  the  state  to 
which  the  person  committing  the  injury  belongs.  But  it  is 
held  that  captures,  made  after  a  peace,  but  before  the  captor 
has  become  aware  of  it,  subject  him  to  a  civil  suit  for  damages, 
and  that  he  must  fall  back  on  his  government  to  save  him 
harmless.  It  is  also  held  that  a  capture,  made  before  the  time 
for  the  cessation  of  hostilities  at  a  particular  spot,  but  with  a 
knowledge  that  the  peace  has  been  concluded,  is  unlawful,  and 
must  be  restored ;  the  reason  for  which  rule  is,  that  the  limit 
of  time  is  intended  to  cover  hostile  acts  performed  in  ignorance 
of  the  new  pacific  relation. 


CHAPTEE  II. 

OF  THE  RELATIONS  BETWEEN  BELLIGERENTS  AND  NEUTRALS. 

SECTION  I. — Of  the  Obligations  and  Eights  of  Neutral  States. 

§155. 

THE  rights  of  neutrals  have  grown  up  to  be  an  important 
part  of  international  law  in  modern  times.  The 

.  .  ..        Doctrine  of  neu- 

ancients  put  the  rights  of  war  foremost,  and  the  tramy  of  modem 
neutral  stood  chiefly  in  the  passive  relation  of 
non-interference.  This  was  owing,  in  part,  to  the  fact  that  a 
system  of  confederations  united  the  states  of  antiquity  together 
in  war,  so  that  few  prominent  powers  stood  aloof  from  the 
struggles  in  which  their  neighbors  were  engaged,  and  in  part 
to  the  small  importance  of  neutral  interests.  Things  have  put 
on  a  new  shape  with  the  growth  of  wide  intercourse  especially 
by  sea,  and  with  the  spread  of  one  code  of  public  law  over  so 
many  powerful  states  of  the  world,  who,  when  they  have  stood 
aloof  from  war,  have  created  for  themselves  rights,  or  secured 
the  acknowledgment  of  existing  ones.  Now,  when  a  war  arises 
between  two  states,  the  interests  of  all  neutrals  are  more  affect 
ed  than  formerly ;  or,  in  other  words,  neutral  power  has  in 
creased  more  than  war  power,  and  the  tendency  is  more  and 
more  towards  such  alterations  of  the  code  of  war  as  will  favor 
neutral  commerce.  A  change  evidently  in  the  direction  of 
peace  and  of  Christian  civilization. 

The  increasing  importance  of  questions  connected  with 
neutrality  is  shown  by  the  small  space  which  Grotius  gives  to 
it,  compared  with  his  immense  copiousness  on  many  now  minor 
questions.  He  devotes  a  short  and  trifling  chapter  to  those 


262  OF    THE    RELATIONS    BETWEEN  §  155 

who  are  "  medii  in  beljo"  (III.  IT),  and  a  section  to  those  who 
are  not  parties  to  a  war,  and  yet  supply  aid  to  the  combatants 
(III.  1,  §  5.)  This,  if  we  are  not  deceived,  is  nearly  the  extent 
of  his  doctrine  of  neutrality.  Take  up  now  any  of  the  leading 
publicists  of  the  last  hundred  years,  and  you  will  find  the  chap 
ters  devoted  to  this  doctrine  second  to  few  or  none  others  in 
fulness  and  importance. 

A  neutral  state  is  one  which  sustains  the  relations  of  amity 
to  both  the  belligerent  parties,  or  negatively  is  a 

Neutrals,  who?  ,  fo  r' ,  '  -,.-,., 

non  hostis,  as  Bynkershoek  has  it,  one  which  sides 
with  neither  party  in  a  war. 

There  are  degrees  of  neutrality.  Strict  neutrality  implies 
Gradations  of  neu-  that  a  state  stands  entirely  aloof  from  the  opera 
tions  of  war,  giving  no  assistance  or  countenance 
to  either  belligerent.  Imperfect  neutrality  may  be  of  two 
kinds :  it  may  be  impartial,  inasmuch  as  l)oih  belligerents  have 
equal  liberty  to  pursue  the  operations  of  war,  or  certain  opera 
tions,  such  as  transit  of  troops,  purchase  of  military  stores,  en 
listments  of  soldiers  or  seamen, within  the  neutral's  territory; 
or  qualified  by  an  anterior  engagement  to  one  of  the  parties, 
as  by  a  covenant  to  furnish  a  contingent  of  troops,  or  to  place 
a  certain  number  of  ships  at  his  disposal.  It  is  manifest  that 
agreements  like  these  partake  of  the  nature  of  alliance.  The 
other  belligerent  then  is  free  to  decide  whether  he  will  regard 
such  a  state  as  neutral  or  as  an  ally  of  his  enemy.  If  the  assist 
ance  to  be  rendered  is  trifling,  and  has  no  reference  to  a  parti 
cular  case  or  a  war  with  a  particular  nation,  it  will  probably 
be  overlooked ;  otherwise  it  will  expose  the  nation  furnishing 
the  assistance  to  the  hostility  of  the  other.  Such  was  the  agree 
ment  of  Denmark,  put  into  effect  in  1Y88,  in  a  war  between 
Sweden  and  Russia,  to  furnish  certain  limited  succors  to  the 
latter.  Such,  also,  are  the  exclusive  privileges,  which  may 
have  been  granted  beforehand,  of  admitting  the  armed  vessels 
and  prizes  of  one  of  the  belligerents  into  the  neutral's  ports. 

A  state  may  stipulate  to  observe  perpetual  neutrality  to- 
Permanent  neu-  wards  some  or  all  of  its  surrounding  neighbors,  on 
traiity  ?  condition  of  having  its  own  neutrality  respected. 


§156  BELLIGERENTS    AND    NEUTRALS.  263 

It  thus  strips  itself  of  its  own  power  of  sovereignty,  so  far  forth 
that  it  cannot  declare  war  against  any  of  these  states  except 
for  the  act  of  violating  this  neutrality.  Such  is  the  position  of 
Switzerland, — including  the  provinces  of  Chablais  and  Faucig- 
ny  and  all  the  territory  of  Savoy,  north  of  Ugine,* — and  of 
Belgium,  whose  neutrality  and  inviolability  of  territory  were 
formally  recognized ; — that  of  the  first  by  the  declaration  of  the 
allied  powers,  of  March  20,  1815,  which  the  federative  author 
ities  soon  afterwards  accepted,  and  that  of  the  latter  by  the  five 
great  powers  on  its  final  treaty  with  Holland  in  1831.  The 
reasons  for  these  arrangements  were  the  welfare  of  the  minor 
states  before  mentioned,  and  the  preservation  of  the  peace  of 
Europe :  Switzerland  furnishes  pathways  for  armies  between 
France  and  Italy,  and  Belgium  is  interposed  as  a  barrier  be 
tween  France  and  Germany.  The  free  town  of  Cracow  also 
enjoyed  for  a  while  a  kind  of  guaranteed  neutrality,  before  it 
lost  its  liberties  in  1846. 

The  position  of  the  neutral  gives  rise  to  rights,  which  may 
be  defended  against  attempted  aggressions  of  a  Armed  neutral. 
belligerent  by  armed  forces,  and  several  neutrals  ity- 
may  unite  for  this  purpose.  This  is  called  an  armed  neutrality, 
of  which  the  two  leagues  of  the  Baltic  powers  in  1780  and 
1800  furnish  the  most  noted  instances.  But  it  may  be  doubted 
whether  the  term  neutrality  can  be  applied  to  leagues  like  this, 
which  not  only  armed  themselves  for  self-defence,  but  laid 
down  principles  of  public  law  against  the  known  maxims  of 
one  of  the  belligerents,  which  they  were  ready  to  make  good 
by  force.  (§  174,  §  191.) 

§156. 

In  most  wars  nations  are  bound  to  be  neutral,  as  having  no 
vocation  to  judge  in  the  disputes  of  other  states,  obligations  of 
and  as  being  already  friends  to  both  parties.     The  neutrals- 
obligations  must  be  fixed  and  known,  in  order  to  prevent  the 
neutral  from  slipping  into  a  position,  to  which  war  between  his 

*  The  neutrality  of  these  Sardinian  districts  does  not  cease  in  consequence  of 
their  recent  cession  to  France. 


264:  OF    THE    RELATIONS    BETWEEN  §  157 

friends,  if  lie  do  not  keep  his  ground,  must  force  him.  "  The 
enemies  of  our  friends,"  says  Bynkershoek  (Qusest.  J.  P.,  I.  9), 
"  are  to  be  considered  in  a  twofold  light,  as  our  friends  and 
our  friends'  enemies.  If  you  consider  them  as  friends,  we  may 
rightfully  aid  and  counsel  them,  and  may  supply  them  with 
auxiliary  troops,  arms,  and  other  things  which  war  has  need 
of.  But  as  far  as  they  are  our  friend's  enemies,  it  is  not 
permitted  to  us  to  do  this,  for  thus  we  should  prefer  one  to  the 
other  in  war,  which  equality  in  .  friendship,  —  a  thing  to  be 
especially  aimed  at,  —  forbids.  It  is  better  to  keep  on  friendly 
terms  with  both,  than  to  favor  one  of  the  two  in  war,  and  thus 
tacitly  renounce  the  other's  friendship."  The  principles  from 
which  we  start  seem  to  be  clear  enough  ;  at  the  same  time,  for 
the  reason  that  neutrality  is  a  thing  of  degrees,  and  that  the 
practice  of  nations  has  been  shifting,  it"  is  a  little  difficult  to 
lay  down  with  precision  the  law  of  nations  in  regard  to  it,  as 
it  is  at  present  understood.  That  law  seems  to  be  tending 
towards  strict  neutrality. 

A  just  war  being  undertaken  to  defend  rights,  each  sover- 
t  be  eignty  must,  as  we  have  seen,  decide  for  itself 
whether  its  war  be  just  and  expedient.  It  follows 
that  powers  not  parties  to  the  war  must  treat  both  belligerents 
alike  as  friends.  Hence  no  privilege  can  be  granted  or  with 
held  from  one  and  not  equally  from  the  other.  Thus,  if 
transit,  or  the  entrance  into  harbors  of  ships  of  war,  for  the 
purpose  of  refitting  or  of  procuring  military  supplies,  or  the 
admission  of  captured  prizes  and  their  cargoes  is  allowed  to 
the  one  belligerent,  the  other  may  claim  it  also.  Otherwise  a 
state  aids  one  of  its  friends  in  acts  of  violence  against  another, 
which  is  unjust,  or  aids  a  friend  in  fighting  against  another 
party,  which  is  to  be  an  ally  and  not  a  neutral. 

§157. 

But  the  rule  of  impartiality  is  not  enough.  The  notion  of 
But  impartiality  is  neutrality,  to  say  nothing  of  the  convenience  of 
not  enough.  tke  neutral  and  his  liability  to  be  drawn  into  the 
war,  demands  something  more.  It  is  not  an  amicable  act, 


mus 
impartial. 


§  158  BELLIGERENTS   AND    NEUTRALS.  265 

when  i  supply  two  of  my  friends  with  the  means  of  doing 
injury,  provided  I  do  as  much  for  one  as  for  the  other.  Such 
a  relation  is  not  that  of  a  medius  inter  hostes,  but  of  an  impar 
tial  enemy,  of  &yack  on  loth  sides.  Moreover,  it  is  impartiality 
in  form  only,  when  I  give  to  two  parties  rights  within  my 
territories,  which  may  "be  important  for  the  one,  and  useless  to 
the  other.  The  United  States  in  a  war  between  Great  Britain 
and  Russia  might  allow  both  parties  to  enlist  troops  within  its 
borders,  but  what  would  such  a  privilege  be  worth  to  Russia  ? 
And,  indeed,  almost  every  privilege  conceded  by  neutrals 
would  be  apt  to  inure  more  to  the  benefit  of  one  than  of  the 
other  of  two  hostile  nations.  A  rule  of  greater  fairness  would 
be  to  allow  nothing  to  the  belligerents,  which  either  of  them 
would  object  to,  as  being  adverse  to  his  interests ;  but  this  rule 
would  be  subjective,  fluctuating,  and  probably  impracticable. 
A  rule,  again,  expressive  of  strict  neutrality,  would  prohibit 
the  neutral  from  rendering  any  service  specially  pertaining  to 
war,  or  allowing  his  territory  to  be  used  for  any  military  pur 
pose  by  either  belligerent.  This,  if  we  add  the  qualification, 
"  unless  engagements  previous  to  the  war  concede  some  special 
assistance  to  one  of  the  parties,  which  assistance  is  not  of  im 
portance  enough  to  convert  a  neutral  into  an  ally,"  would 
nearly  express  what  is  the  present  law  and  usage  of  nations. 

§158. 

But  it  is  necessary  to  descend  to  particulars.  We  shall 
consider,  first,  what  duties  neutrality  does  not  preclude; 
secondly,  what  it  binds  the  neutral  not  to  do  or  allow ;  and 
then  shall  take  up  by  themselves  certain  actions  which  are 
open  to  doubt. 

1.  The  neutral  ought  to  discharge  the  duties  of  humanity 
to  both  belligerents,  for  these  are  still  due  even  to 

-j  n  Neutrals  must  be 

an  enemy,  and  are  due  to  persons  01  no  nationali-  humane  to  both 
ty.     It  is,clear  that  a  ship  of  war  in  distress  may 
during  war  run  into  a  neutral  port,  unless  there  is  some  special 
reason  to  prevent  it.     So  asylum  is  allowed  within  neutral 
territory  and  waters  to  a  defeated  or  fugitive  belligerent  force, 


OF    THE    RELATIONS    BETWEEN  §158 

and  the  victor  must  stop  his  pursuit  at  the  borders.  The  con 
ditions,  however,  according  to  which  refugees  shall'be  received, 
are  not  absolutely  settled.  In  the  case  of  troops  fleeing  across 
the  borders,  justice  requires  that  they  shall  be  protected,  not 
as  bodies  of  soldiers  with  arms  in  their  hands,  but  as  individ 
ual  subjects  of  a  friendly  state :  they  are,  we  believe,  in  prac 
tice  generally  disarmed,  and  supported  in  their  place  of  shelter 
at  the  expense  of  their  sovereign.  The  other  course  would  be 
unfriendly,  as  protected  soldiers  might  issue  forth  from  a 
friend's  territory  all  ready  for  battle ;  and  would  also  tend  to 
convert  the  neutral  soil  into  a  theatre  of  war.  In  the  case  of 
ships  of  war  running  into  neutral  waters  in  order  to  escape 
from  an  enemy,  to  demand  that  they  shall  either  be  disarmed, 
like  fugitive  troops,  or  return  to  the  high  seas,  seems  to  be  a 
harsh  measure,  and  unauthorized  by  the  usages  of  nations.  An 
instance  of  such  harshness  occurred  in  the  recent  war  between 
Schleswig-Holstein  and  Denmark.  A  small  war-steamer,  be 
longing  to  the  former  party,  ran  for  safety,  in  July,  1850,  into 
the  waters  of  Liibeck,  which  was  on  friendly  terms  with  both 
belligerents.  The  senate  of  Liibeck  had  given  orders  that 
vessels  of  war  of  either  party,  appearing  within  its  jurisdiction, 
must  lay  down  their  arms,  or  depart  beyond  cannonshot  from 
the  coast.  The  lieutenant  commanding  the  steamer  chose  the 
latter  alternative.  In  justification  of  its  conduct,  which  was 
impartial,  Liibeck  only  plead  that  the  neutral,  in  regard  to  the 
rules  of  hospitality,  must  consult  its  own  interests,  and  that 
small  states,  in  order  to  have  their  character  for  neutrality 
respected,  must  "  observe  in  everything  which  relates  to  war 
itself  the  stricter  rules  of  neutrality."  They  would  receive, 
they  said,  vessels  of  the  belligerent  parties,  only  when  escaping 
the  perils  of  the  seas,  and  then  only  whilst  such  perils  lasted. 
The  analogy  from  the  practice  of  disarming  fugitive  troops 
does  not  hold  here.  If  the  ship  is  driven  out  at  once,  it  goes 
where  a  superior  force  is  waiting  for  it ;  if  it  remains  disarmed, 
the  expense  and  inconvenience  are  great.* 

*  Yon  Kaltenborn,  author  of  the  "  Vorlaiifer  des  Hugo  Grotius,"  published  at 
Hamburg,  in  1850,  a  brochure,  entitled  "  Kriegsschiffe  auf  neutralem  Gebiete,"  from 


§  160  BELLIGERENTS   AND    NEUTRALS.  267 

§159. 

The  same  spirit  of  humanity,  as  well  as  respect  for  a  friend 
ly  power,  imposes  on  neutrals  the  duty  of  opening 

it    •  ^         *  T.    Ai_    1    IT  May  admit  vessels 

their  ports  to  armed  vessels  01  both  belligerents,  of  war  of  the  bei- 

.  '    ligerenta. 

for  purposes  having  no  direct  relation  to  the  war, 
and  equally  likely  to  exist  in  time  of  peace.  Cruisers  may  sail 
into  neutral  harbors  for  any  of  the  purposes  for  which  mer 
chant  vessels  of  either  party  frequent  the  same  places,  except 
that  merchant  vessels  are  suffered  to  take  military  stores  on 
board,  which  is  forbidden  generally,  and  ought  to  be  forbidden 
to  ships  of  war. 

2.  The  general  practice  of  nations,  dictated  perhaps  by 
comity,  has  hitherto  permitted  cruisers  to  bring  their  prizes 
into  neutral  ports.  We  have  already  seen  that  this  is  not 
obligatory  on  neutrals,  and  sound  policy  demands  that  it  be 
prohibited.* 

§160. 

On  the  other  hand,  it  is  a  violation  of  neutrality  for  a  neu 
tral  state  to  lend  money,  or  supply  troops  (with  mat  neutrala 
the  exception  already  mentioned),  or  open  harbors  may  not  da 
for  hostile  enterprises ;  or  to  allow  the  presence  of  any  indi 
vidual  or  any  vessel  pertaining  to  a  belligerent  state  within  his 
territory,  when  believed  to  be  stationed  there  for  the  purpose 
of  carrying  out  a  hostile  undertaking ;  or  to  suffer  its  subjects  to 
prepare,  or  to  aid  in  preparing  or  augmenting  any  hostile  ex 
pedition  against  a  friendly  power,  as  for  instance  to  build,  arm, 
or  man  ships  of  war  with  such  a  purpose  in  view,  or  to  build 
them  with  this  intent  so  far,  as  to  make  them  ready  for  an  arma 
ment  to  be  put  on  board  upon  the  high  seas  or  in  some  neutral 
port.  Nor  can  he  allow  his  courts  to  be  employed  in  deciding 
upon  the  validity  of  captures  made  by  belligerent  vessels. 

which  these  facts  are  drawn ;  and  which,  while  occupied  with  an  examination  of  this 
particular  case,  contains  an  excellent  summary  of  the  rights  and  duties  of  neutrala 
on  their  own  territories. 

*  That  is,  captures  in  war  ought  to  be  attended  with  so  many  inconveniences  ai 
to  check  the  spirit  of  plunder. 


268  OF    THE    RELATIONS    BETWEEN  §160 

ISTor,  again,  can  he  during  a  war  be  the  acquirer  by  purchase 
or  otherwise  of  any  conquest  made  by  either  of  the  parties 
without  deserting  his  unbiassed  neutral  position. 

If  a  neutral  power  violates  its  obligations  in  these  respects 
or  winks  at  hostile  proceedings,  such  conduct  may  afford  ground 
even  for  'war.  If  it  is  careless  in  not  preventing  damage  to  a 
friend  from  the  undertakings  of  its  subjects,  it  is  liable  for  the 
loss  thence  resulting.  (§  163.)  !Nor  can  it  plead  the  inefficiency 
of  its  laws,  or  want  of  sufficient  law,  for  all  nations  are  bound 
to  enforce  the  law  of  nations  within  their  own  limits.  (§  29, 
207.)  It  ought  to  be  said,  however,  that  the  base  arts  of  mer 
chants  and  shipbuilders  will  often  prevent  governments  from 
obtaining  due  evidence  of  the  existence  of  such  hostile  designs ; 
and  that  the  distinction  between  whatsis  merely  contraband  of 
war, — as  a  ship  of  war  made  for  sale,  if  that  be  a  fair  instance, 
— and  that  which  is  a  hostile  expedition,  is  sometimes  so  nice, 
that  the  present  law  of  nations,  and  municipal  law  enforcing  it, 
must  allow  many  wrongs  done  to  neutrals  to  slip  through  their 
fingers.  Might  not  something  be  gained,  if,  during  wars  be 
tween  friendly  states,  builders  and  armers  of  vessels  were 
required  by  neutral  governments  to  give  security  to  double  the 
value  that  these  were  not  intended  to  be  used  in  hostile  expedi 
tions?  *  (Comp.  §  178,  note.) 

It  was  formerly  thought  that  the  neutral  might  allow  the 
transit  of  belligerent  troops  through  his  territory. 

Cases  doubtful  or  °  '         .        ,&  j? 

disputed.  the  passage  ot  snips  engaged  in  the  service  01  war 

Passage  of  troops.  °  *.•  f  \*      A.-I 

through  his  waters,  and  the  preparation  01  hostile 
expeditions  in  his  harbors,  if  he  granted  the  same  to  both  sides. 
All  now  admit  that  the  neutral  may  refuse  any  of  these  privi 
leges,  and  must  be  the  sole  judge  in  the  case,  although  Yattel 
inclines  to  think  that  innocent  transit  in  extreme  cases  may 
even  be  carried  through  with  force.f  Many  publicists  still 

*  For  the  conduct  of  our  government  in  preventing  hostile  expeditions,  and  in 
making  reparations  for  wrongs  committed  by  them,  when  they  had  had  their 
origin  in  our  ports,  see  a  pamphlet  entitled  "  English  Neutrality,"  by  G.  P.  Lowrey, 
New  York,  1863. 

f  Vattel,  III.  7,  §§  119-135. 


§161  BELLIGERENTS    AND    NEUTRALS.  269 

view  the  allowance  of  transit  as  reconcilable  with  the  notion 
of  neutrality,  and  a  number  of  treaties  have  expressly  granted 
it  to  certain  states.  Heffter,  who  held  this  view  in  his  first  edi 
tion,  has  in  the  third  (§  147)  justly  taken  the  opposite  side.  His 
reasons  for  his  later  opinion  against  allowing  transit  are,  that 
for  the  most  part  an  actual  gain  accrues  from  it  to  one  party, 
and  that  it  will  rarely  happen  that  both  can  avail  themselves 
of  it  during  a  war,  with  equal  advantage.  (Comp.  §  157.) 

§  161. 

The  practice  of  neutrals  to  furnish  troops  to  belligerents,  or 
to  allow  them  to  enlist  troops  on  neutral  ground,  The  neutral  fur. 
was  formerly  common  and  allowed.*  Thus  six  nishing  troop8- 
thousand  Scotchmen  joined  the  army  of  Gustavus  Adolphus. 
The  Swiss,  like  the  Arcadians  of  old,  for  centuries  furnished 
troops  to  many  foreign  sovereigns,  not  without  detriment  to  the 
national  character,  as  Zwingli  and  other  patriots  have  felt, 
and  still  in  recent  times  they  have  hired  out  soldiers  to  some 
of  the  Italian  states.  Several  old  treaties  gave  France  the 
preference  over  other  nations  in  levying  Swiss  troops,  and  that 
of  1521  allowed  her  to  enlist  a  number  not  exceeding  1,600, 
who  could  not  be  recalled  by  the  authorities  at  home  so  long 
as  France  was  at  war.  A  treaty  of  this  kind  was  made  as*  late 
as  1803.  Heffter  thinks,  however,  that  since  the  neutrality  of 
1815,  they  would  not  be  justified  in  agreeing  to  furnish  troops 
to  one  European  power  against  another  after  the  outbreak  of 
a  war.  Many  treaties  made  in  the  last  three  centuries  have 
renounced  the  power  thus  to  furnish  troops,  or  have  put  an  end 
to  foreign  enlistment,  while  a  number  of  an  opposite  import 
have  permitted  the  one  or  the  other.  By  the  treaty  of  Minister 
in  1648 — we  quote  the  words  of  Mr.  Manning  (p.  174),  "  it  was 
agreed  that  none  of  the  contracting  parties  should  afford  to  the 
enemies  of  the  other  arms,  money,  soldiers,  provisions,  harbor 
or  passage,  the  right  being  however  reserved  to  the  individual 
states  of  the  empire  to  serve  as  mercenaries  according  to  the 
constitutions  of  the  Empire."  This  custom  has  now  a  linger- 
*  See  Manning,  Book  III.  1.  p.  166-181. 


270  OF    THE    RELATIONS    BETWEEN  §  162 

ing  existence :  it  is  forbidden  in  some  countries  by  law,  and  is 
justly  regarded  as  a  violation  of  neutrality. 

§162. 

International  law  does  not  require  of  the  neutral  sovereign 
that  he  should  keep  the  citizen  or  subject  within 

SJ'fwtSLuTt  tlie  same  strict  lines  of  neutrality,  which  he  is 
bound  to  draw  for  himself.  The  private  person, 
if  the  laws  of  his  own  state  or  some  special  treaty  does  not 
forbid,  can  lend  money  to  the  enemy  of  a  state  at  peace  with 
his  own  country  for  purposes  of  war,  or  can  enter  into  its 
service  as  a  soldier,  without  involving  the  government  of  his 
country  in  guilt.  The  English  courts,  however,  and  our  own 
deny  that  any  right  of  action  can  arise  out  of  such  a  loan,  on 
the  ground  that  it  is  contrary  to  the  law  of  nations.  (Philli- 
more,  III.  §  151,  case  of  Kennett  v.  Chambers,  14  Howard, 
U.  S.  Rep.,  38.)  The  practice  of  individuals  belonging  to  a 
neutral  nation  serving  in  foreign  wars  *  was  formerly  widely 
diffused  and  admitted  throughout  Europe,  and  is  not  of  easy 
prevention,  if  prohibited,  for  at  the  worst  the  individual  may 
renounce  his  country.  It  is  only  when  a  great  pressure  into 
the  armies  of  one  of  the  belligerents  is  on  foot,  that  the  neutral 
can  be  called  on  to  interfere.  In  the  case  of  private  armed 
vessels  the  usage  is  different.  It  is  now  regarded  as  a  breach 
of  neutrality  to  allow  a  subject  to  accept  letters  of  marque  and 
equip  armed  vessels,  in  order  to  prey  on  the  commerce  of  a 
belligerent  friend ;  although  it  would  be  impossible,  as  on  the 
land,  to  prevent  individuals  from  going  abroad  for  this  purpose. 

§163. 

Neutrals  have  a  right,  1.  To  insist  that  their  territory  shall 

Rights  of  neu-     be  inviolate  and  untouched  by  the  operations  of 

war,  and  their  rights  of  sovereignty  uninvaded. 

And  if  violations  of  their  rights  are  committed,  they  have  a 

*  Sometimes  neutrals  have  even  sent  military  officers  to  countries  where  war  was 
waging,  that  they  might  learn  the  art  of  war.  To  send  an  experienced  general  on 
such  an  occasion,  or  to  exempt  him  from  penalties  for  accepting  service  abroad,  would 
come  nigh  to  giving  assistance  to  one  of  the  parties.  (Hautefeuille,  I.  258,  ed.  2.) 


§  163  BELLIGERENTS    AND    NEUTRALS.  271 

right  to  punish  the  offender  on  account  of  them,  or  to  demand 
satisfaction  from  his  government.  They  are  in  a  manner 
bound  to  do  this,  because  otherwise  their  neutrality  is  of  no 
avail,  and  one  of  the  belligerents  enjoys  the  privilege  of  im 
punity. 

In  1837,  the  Caroline,  a  steamboat  employed  by  Canadian 
insurgents  in  carrying  passengers  and  munitions  Cage  of  the  Caro_ 
of  war  from  our  borders  to  the  opposite  shore,  was  lme- 
captured  and  destroyed  within  our  waters, — the  leader  of  the 
expedition  against  it  having  expected  to  find  it  within  British 
territory.  In  the  correspondence  between  the  governments  to 
which  this  act  gave  rise,  Mr.  Webster  said  that  such  a  violation 
of  neutrality  could  be  justified  only  by  a  "  necessity  of  self- 
defence,  instant,  overwhelming,  having  no  choice  of  means,  and 
no  moment  of  deliberation."  Lord  Ashburton  contended  that 
this  was  just  such  a  case  of  necessity,  but  regretted  that  some 
explanation  and  apology  for  the  occurrence  was  not  immedi 
ately  made.  And  so  the  matter  ended. 

E"o  cruiser  is  authorized  to  chase  a  vessel  within  or  across 
neutral  waters,  and  all  captures  so  made,  or  made  in  violation 
of  the  neutral  laws  for  maintaining  neutrality,  must  be  regard 
ed  as  illegal  w^ith  respect  to  the  neutral,  although  not  illegal 
with  respect  to  the  enemy.*  If  such  a  prize  is  brought  into 
any  of  the  neutral's  ports,  he  is  authorized  to  seize  and  restore 
it.  If  it  be  carried  into  a  port  of  another  country,  he  has  a  right 
to  demand  its  restoration,  and  the  prize  court  of  the  belligerent 
is  bound  to  respect  the  objection.  If  the  neutral  fails  to  exer 
cise  his  rights  in  these  respects,  the  government  of  the  cruiser 
which  has  been  thus  captured  may  complain  or  even  retaliate. 
The  vessel  committing  the  violation  of  neutrality  may  be 
seized,  either  within  the  waters  of  the  neutral,  or  after  pursuit 
on  the  high  seas,  and,  wrhen  captured,  may  be  tried  before  the 
proper  court  for  the  offence.  Or  its  government,  if  the  neutral 
prefer,  or  is  forced  to* take  that  mode  of  redress,  may  be  required 
to  give  satisfaction  in  regard  to  the  injury 

*  Comp.  Wildman,  II.  14Y. 


272  OF   THE   RELATIONS   BETWEEN  §  164 

§164. 

2.  Neutrals  can  claim  from  the  belligerents,  during  war,  all 
that  respect  for  their  flag,  for  their  representatives,  for  their 
property,  and  the  property  of  their  citizens  or  subjects,  when 
employed  in  the  lawful  operations  of  war,  to  which  they  have 
a  right  during  peace.  To  preclude  the  ambassadors  of  the 
neutral  from  egress  and  ingress  into  enemy's  territory  is  un 
friendly,  although  the  enemy's  envoys  to  the  neutral  may  be 
seized  except  on  neutral  soil  or  ships.  (§  93.)  The  property 
of  neutrals  has  sometimes  been  wrongfully  seized  for  govern 
ment  purposes  in  cases  where  necessity  was  plead  for  so  doing, 
but  not  without  the  prospect  held  out  of  compensation.  And 
this,  which  Louis  XIY.  is  said  to  have  pronounced  to  be  a 
right,  has  been  extended  to  their  seamen.  The  right  of  pre 
emption  in  war  will  be  considered  in  another  place.  And  the 
restrictions  on  neutral  trade  will  be  the  subject  of  a  separate 
chapter. 

§165. 

Every  nation  is  bound  to  pass  laws  whereby  the  territory 
Municipal  laws  and  other  rights  of  neutrals  shall  be  secured,  and 

enforcing  neutral-  . 

ity.  nas  a  right  to  secure  itselt  in  the  same  manner. 

Nor  is  there  any  deficiency  of  such  laws  in  Christendom.  Thus 
Great  Britain,  by  an  act  passed  in  1819,  forbade  British  sub 
jects  to  enter  the  service  of  foreign  states  under  penalty  of  fine 
and  imprisonment,  although  such  an  act  of  individuals,  as  we 
ha,ve  seen,  is  not  a  violation  of  neutrality.  The  United  States 
by  various  acts,  as  by  those  passed  in  1794,  1818,  and  1838, 
have  endeavored  to  prevent  injuries  to  neutral  and  friendly 
powers,  as  well  as  violations  of  our  own  rights,  whether  by 
citizens  or  foreigners.  Thus  (1.)  it  is  made  a  misdemeanor  for 
a  citizen  to  accept  or  exercise  within  our  territory  a  commis 
sion  from  a  foreign  power  in  a  war  against  a  state  at  peace 
with  us.  (2.)  It  is  unlawful  for  any  one  to  enlist,  or  induce 
another  person  within  our  borders  to  enlist,  or  engage  him  to 
go  abroad  to  enlist  in  foreign  service  against  a  friendly  power ; 
or  to  institute  within  our  territory  any  military  expedition  by 


§  166  BELLIGERENTS    AND    NEUTRALS.  273 

land  or  sea,  against  any  such  power ;  or  to  augment  the  force 
of  any  vessel  having  such  hostile  intent ;  and  the  vessels  en 
gaged  in  such  an  enterprise  by  sea  are  subject  to  forfeiture. 
(3.)  No  belligerent  vessels  are  allowed  to  provide  themselves 
with  military  stores,  or  with  anything  not  equally  applicable 
to  commerce  and  to  war.  When  vessels  of  the  two  belligerents 
are  in  our  harbors  together,  they  are  forbidden  to  depart  within 
twenty-four  hours  of  one  another.  And  the  President  is  em 
powered  to  use  force  to  send  out  of  the  waters  of  the  United 
States  such  vessels  as  ought  not  to  remain  within  our  limits,  as 
well  as  to  compel  the  observance  of  our  neutrality  laws  in 
general.*  In  short  our  laws  are  not  bad.  May  no  administra 
tion  or  officials  ever  make  a  purposely  ineffectual  display  of 
maintaining  these  laws,  and  connive  at  their  violation  in  secret ! 

§166. 
During  the  late  Crimean  war  it  came  to  light  that  certain 

O  O 

British  consuls  were  persuading  persons  within  case  of  the  Brit- 

T_     .       ,  —  .  ..         ish  ambassador  in 

our  bounds  to  go  out  of  the  United  States  in  order  isse. 
to  enlist  in  that  service,  and  that  the  minister  at  Washington 
was  aiding  therein.  It  could  not  be  complained  of,  if  the 
United  States  government  showed  displeasure  at  such  proceed 
ings,  demanded  his  removal,  and  even  ceased  to  hold  com 
munication  with  him  as  the  agent  of  the  British  government. 
In  what,  now,  did  his  offence  consist,  in  a  breach  of  our  law 
only  or  in  a  violation  of  international  law  ?  In  answer  it  may 
be  said,  that  if  the  earlier  usage  is  to  decide,  there  was  no 
direct  breach  of  international  law ;  if  the  more  modern,  there 
was  a  breach.  But  supposing  this  to  be  doubtful,  in  breaking 
our  laws  of  neutrality,  which  have  the  peculiar  character  of 
supporting  the  laws  of  nations,  and  that  too  when  he  was  the 
representative  of  another  sovereignty,  he  attacked  the  sover- 

*  Kent,  I.  122,  123,  Lect.  VI.,  whom  I  have  used  in  this  summary  of  our  neutral 
ity  laws.  For  captures  made  by  ships  that  have  committed  a  breach  of  our  neutral 
ity  laws,  comp.  §  163.  Illegal  augmentation  of  force  affects  captures  made  on  the 
cruise  for  which  the  augmentation  took  place,  but  not  afterward.  (7  Wheaton  Rep. 
348.) 

18 


274  OF    THE    RELATIONS    BETWEEN  §  166  6 

ereignt y  of  the  nation  and  in  this  way  came  in  conflict  with 
law  international,  which  aims  to  secure  the  sovereignty  of  all 
the  nations  who  acknowledge  it.  And  even  if  our  law  could 
have  been  evaded  by  inducing  men  to  go  abroad  for  another 
object,  and  there  persuading  them  to  enlist  in  a  war  against 
one  of  our  Mends,  there  would  still  have  remained  ground  of 
complaint  against  the  agents  in  such  a  scheme,  as  disturbers 
of  our  relations  with  a  friendly  power. 

§  166  I. 

A  foreign  power,  as  we  have  seen  (§  40,  §  41),  may  assist  a 
Relation  of  neu-  s^ate  to  repress  a  rebellion,  but  may  not  assist 
tkMnVfaSJS  revolters  themselves,  but,  when  these  have  fairly 
created  a  new  government,  may  enter  into  rela 
tions  with  it,  without  unfriendliness  towards  the  original  state. 
Meanwhile,  until  the  fact  of  a  new  state  is  decided  by  the 
issue  of  the  struggle,  the  position  of  neutrals  is  a  delicate  one, 
and  one  to  which  little  attention  has  been  paid  by  writers  on 
the  law  of  nations.  Theoretically  we  say,  (1.)  The  relation, 
if  the  foreign  power  stands  aloof,  is  not  that  of  neutrality  be 
tween  states,  but  of  neutrality  between  parties  one  of  which  is 
a  state,  and  the  other  trying  to  'become  a  state. 

(2.)  The  foreign  power,  therefore,  cannot  plead  the  laws  of 
neutrality,  for  treating  both  parties  alike,  for  the  one  is  an 
acknowledged  state,  the  other  is  not.  Thus  whatever  favors 
it  has  granted  to  the  cruisers  of  the  friendly  state  it  is  not 
bound  to  grant  to  the  revolters,  or  rather,  it  is  bound  not  to 
grant  to  them  the  same  privileges,  for  by  so  doing,  it  admits 
their  right  to  prey  on  the  commerce  of  its  friend, — which  only 
states  can  do. 

(3.)  In  a  certain  sense  the  foreign  power  must  regard  the 
revolters  as  belligerents,  entitled  to  all  those  rights  which 
humanity  demands,  as  that  of  asylum  for  troops  or  vessels  in 
distress,  or  fleeing  from  a  superior  power, — the  same  sorts  of 
rights  which  would  be  granted  to  political  exiles.  The  vessels 
of  such  revolters  cannot  be  regarded  as  piratical,  for  their 
motive  is  to  establish  a  new  state,  while  that  of  pirates  is  plun- 


§  167  BELLIGERENTS    AND    NEUTRALS.  275 

der.  A  pirate  never  ends  his  war  with  mankind,  they  fight 
for  peace. 

(4.)  What  measures  can  the  state  at  war  with  a  part  of  its 
subjects  take  in  regard  to  foreign  trade  with  revolted  ports  ? 
To  say  that  it  cannot  apply  the  rules  of  blockade,  contraband 
and  search,  because  the  ports  are  its  own,  is  mere  pettifogging. 
But  can  it  close  these  ports  by  an  act  of  the  government,  as  it 
once  opened  them  ?  At  first  view  it  seems  hard  to  refuse  this 
right  to  a  nation,  but  the  better  opinion  is  that  foreigners,  by 
having  certain  avenues  of  trade  open  to  them,  have  thereby 
acquired  rights.  (§  28.)  The  nation  at  war  within  itself  must 
overcome  force  by  force,  but  this  method  of  closing  ports 
supersedes  war  by  a  stroke  of  the  pen.  It  is  the  fact  of  obstruc 
tion  in  the  ordinary  channels  of  trade  which  foreign  nations 
must  respect.  If  the  state  in  question  cannot  begin  and  con 
tinue  this  fact,  it  must  suffer  for  its  weakness. 

But  international  law  does  not  make  all  these  distinctions. 
The  colonies  of  Spain,  as  yet  unrecognized,  were  regarded  by 
us  as  "  belligerent  nations,  having,  so  far  as  concerns  us,  the 
sovereign  rights  of  war,  and  entitled  to  be  respected  in  the  ex 
ercise  of  those  rights  ?  "  And  so  England  and  France  act  in 
the  war  which  is  now  upon  us.  (7  Wheaton  Rep.  337.) 


SECTION  II. — Of  the  Rights  and  Liabilities  of  Neutral  Trade. 

§167. 

Having  considered  the  relations  between  belligerent  and 
neutral  states,  we  now  proceed  to  inquire  how  war  Importance    of 
affects  the  commerce  of  neutral  persons,  or  the  ^^/'neuS 
rights  and  liabilities  of  neutral  trade.     This  is  a  trade' 
subject  of  greater  practical  importance,  perhaps,  than  any  other 
in  international  law ;  for  if  the  rule  restricting  the  freedom  of 
neutral  trade  verges  to  the  extreme  of  strictness,  the  evils  of 
war  are  very  much  increased,  and  its  non-intercourse  is  spread 
over  a  wider  field.     It  is  also  a  subject  in  which  the  jarring 


276  OF    THE    RELATIONS    BETWEEN  §  168 

views  of  belligerents  and  of  neutrals  have  hitherto  prevented 
fixed  principles  on  many  points  from  being  reached,  so  that 
neither  have  different  nations  agreed  in  their  views,  nor  has 
the  same  nation  at  different  times  been  consistent,  nor  have 
text-writers  advocated  the  same  doctrines.  Yet  the  history  of 
opinion  and  practice  will  lead  us  to  the  cheering  conclusion 
that  neutral  rights  on  the  sea  have  been  by  degrees  gaining, 
and  to  the  hope  that  hereafter  they  will  be  still  more  under 
the  protection  of  international  law  than  at  any  time  past. 

§168. 

The  nationality  of  individuals  in  war  depends  not  on  their 
origin  or  their  naturalization,  but  upon  their  domi- 

Who  are  neutrals  °  .  .  . 

and  what  is  neu-  cil.     He  is  a  neutral  who  is  domiciled  of  free 

tral  property.  . 

choice  in  a  neutral  country,  and.  he  an  enemy  wno 
is  domiciled  in  an  enemy's  country.     Hence 

1.  As  domicil  can  be  easily  shaken  off,  a  person  in  the  pros 
pect  of  war,  or  on  its  breaking  out,  may  withdraw  from  the 
enemy's  to  another  country  with  the  intention  of  staying  there, 
and  thus  change  his  domicil.     If  he  should  return  to  his  native 
country,  fewer  circumstances  would  be  required  to  make  out 
intention  than  if  he  betook  himself  to  a  foreign  territory.     If 
against  his  will  and  by  violence  at  the  breaking  out  of  war  he 
was  detained  in  the  belligerent  country,  his  longer  stay  would 
be  regarded  as  the  forced  residence  of  a  stranger,  and  probably 
all  disadvantageous  legal  consequences  of  his  domicil   there 
would  cease. 

2.  If  a  country  is   conquered   during  a  war,  its  national 
character  changes,  although  it  may  be  restored  again  at  peace, 
and  so  the  nationality  and  liabilities  of  its  inhabitants  engaged 
in  business  change. 

3.  But  a  person  having  a  house  of  commerce  in  the  enemy's 
country,,  although   actually  resident  in  a  neutral  country,  is 
treated  as  an  enemy  so  far  forth  as  that  part  of  his  business  is 
concerned,  or  is  domiciled  there  quo  ad  hoc.     On  the  other 
hand,  a  person  having  a  house  of  commerce  in  a  neutral  coun 
try  and  domiciled  amoi\g  the  enemy,  is  not  held  to  be  a  neu- 


§  169  a  BELLIGERENTS    AND    NEUTRALS.  277 

tral.  This  is  the  doctrine  of  the  English  courts,  adopted  by  the 
American.  "  It  is  impossible,"  says  Dr.  Wheaton  (El.  IY.  1, 
§  20),  "  in  this  not  to  see  strong  marks  of  the  partiality  towards 
the  interests  of  captors,  which  is  perhaps  inseparable  from  a 
prize  code,  framed  by  judicial  legislation  in  a  belligerent  coun 
try,  and  adopted  to  encourage  its  naval  exertions." 

In  general  property  follows  the  character  of  its  owner. 
Thus  neutral  ships  are  ships  owned  by  neutrals,  that  is  by  per 
sons  domiciled  in  a  neutral  country,  and  the  same  is  true  of 
goods.  Hence  in  partnerships,  if  one  owner  is  a  neutral  and 
the  other  an  enemy,  only  the  property  of  the  latter  is  liable  to 
capture.  But  here  we  need  to  notice,  1.  That  ships  cannot 
easily  transfer  their  nationality  on  a  voyage,  the  act  of  so  doing 
being  presumptive  evidence  of  a  fraudulent  intention  to  screen 
them  from  the  liabilities  of  their  former  nationality. 

2.  That  when  a  ship  sails  under  a  hostile  flag,  she  has,  by 
whomsoever  owned,  a  hostile  character. 

3.  If  a  neutral's  ship  sails  under  an  enemy's  license  to  trade, 
she  becomes  hostile ;  for  why  should  she  have  the  advantages 
of  a  close  connection  with  the  enemy  without  the  disadvantages  ? 

4.  If  a  neutral  is  the  owner  of  soil  in  a  hostile  country,  the 
produce  of  such  soil,  exported  by  him  and  captured,  is  con 
sidered  hostile.     This  is  on  the  principle  that  the  owner  of  soil 
identifies  himself,  so  far  forth,  with  the  interests  of  the  country 
where  his  estate  lies.* 

,  §  169  a. 

"When  a  war  arises,  one  of  three  things  must  take  place. 
Either  the  neutral  trade  may  go  on  as  before,  and 
belligerents  have  no  right  whatever  to  iniure  or  pies  aTto  tiJbfity 

.......  -i-i-i-i.  to  capture. 

limit  it  in  any  manner  ;  or  the  belligerents  may, 
each  of  them,  interdict  any  and  all  trade  of  neutrals  with  the 
other ;  or  there  are  certain  restrictions  which  may  be  imposed 
on  neutral  trade  with  justice,  and  certain  other  restrictions, 
which  must  be  pronounced  unjust. 

1.  Few  have  contended  that  the  trade  of  neutrals  ought  to 

*  Corap.  Wheaton,  El.  IV.  1,  §§  17-22j  Kent,  I.  74,  Lect.  IY. 


278  OF    THE    EELATIONS    BETWEEN  §  169  a 

be  entirely  unfettered,  for  a  part  of  that  trade  may  consist  in 
supplying  one  foe  with  the  means  of  injuring  the  other,  and 
the  siege  or  blockade  of  strong  places  would  be  nugatory,  if 
neutrals  ceuld  not  be  prevented  from  passing  the  lines  with 
provisions.  Will  it  be  said  that  such  trade  is  impartial, — that 
it  favors  one  party  in  a  war  no  more  than  the  other  ?  It  would 
be  better  to  say  that  it  is  partial  now  to  one  side  and  now  to 
the  other,  and  that  a  series  of  assistances,  rendered  to  a  party 
in  a  struggle,  although  they  might  balance  one  another, — which 
would  not  generally  be  true  in  fact, — are  unjust,  because  they 
only  put  off  or  render  fruitless  the  effort  to  obtain  redress,  with 
which  the  war  began. 

2.  On  the  other  hand  it  will  not  be  claimed  that  a  belliger 
ent  may  justly  forbid  neutrals  to  carry  on  every  kind  of  trade 
with  his  enemy.     I  may  have  a  right  to  distress  my  foe  in 
order  to  bring  him  to  a  right  mind  and  procure  redress,  but 
what  right  have  I  to  distress  my  friend,  except  so  far  as  he  takes 
the  part  of  my  foe,  and  thus  ceases  to  be  my  friend.     "Will  it 
be  said  that  all  trade  with  one  foe  is  a  damage  to  the  other, 
and  may  therefore  be  broken  up  ?     ISTo  doubt  it  is  indirectly 
an  injury,  but  indirect  results  of  lawful  business  no  more  justify 
interference,  than  the  advance  of  one  nation  in  wealth  and  in 
dustry  justifies  others  in  endeavoring  to  cripple  its  resources. 
The  neutral  might  with  as  much  justice  declare  war,  because 
the  belligerent  injured  him  by  a  fair  operation  of  war, — by 
blockading  the  port  of  his  foe  for  instance, — as  a  party  to  a 
war  require  that  all  trade  should  bend  to  his   convenience. 
And  besides  this,  the  same  humanity  which  allows  internal 
trade  to  remain  undisturbed  during  an  invasion,  ought  to  leave 
the  neutral's  commerce  in  some  degree  free  to  take  its  wonted 
course. 

3.  It  is  therefore  allowed  on  all  hands  that  some  restrictions 
may  be  imposed  on  neutral  trade,  not  such  as  a  belligerent  may 
select,  but  definite  and  of  general  application.    The  law  of  na 
tions  on  this  subject  has  been  viewed  as  a  kind  of  compromise 
between  neutral  and  belligerent  right.     Neutrals  may  legiti 
mately  carry  on  all  sorts  of  trade,  and  belligerents  may  inter- 


§  169  a  BELLIGERENTS    AND    NEUTRALS.  279 

rupt  all.  Hence  nations  have  waived  their  rights  and  come  to 
a  certain  middle  ground,  where  some  rights  of  both  parties  are 
saved  and  some  thrown  overboard.  But  this  view  seems  to  be 
objectionable,  as  making  the  actual  neutral  rights  to  arise  out 
of  a  state  of  things  which  is  a  jural  impossibility.  It  cannot 
•at  the  same  time  be  true  that  neutrals  should  enjoy  a  particu 
lar  trade,  and  belligerents  obstruct  that  trade.  There  must  be 
kinds  of  trade  which  neutrals  have  a  right  to  engage  in,  and 
herein  belligerents  are  obliged  to  leave  them  undisturbed. 
Otherwise  the  law  of  nations  has  no  jural  foundation. 

When  we  ask,  however,  what  degree  of  restriction  may  be 
justly  applied  to  neutral  trade,  we  feel  a  want  of  a  definite 
principle  to  guide  us  in  the  answer :  we  are  forced  to  say  some 
what  vaguely  that  the  restrictions  must  be  such  as  to  keep 
neutral  trade  from  directly  assisting  either  party  in  the  armed 
contest,  and  the  smallest  possible,  consistent  with  the  ends 
which  a  just  war  involves. 

If  these  views  are  correct,  it  is  wrong  for  the  neutral  and 
for  his  subjects  to  engage  in  certain  kinds  of  trade  during  a 
war,  as  truly  as  it  is  right  for  him  to  engage  in  certain  others. 
If,  for  instance,  he  holds  the  same  doctrine  with  the  belliger 
ent  in  regard  to  contraband  of  war,  he  would  violate  the  rights 
of  one  friend  by  supplying  another  with  such  articles.  And 
yet  we  by  no  means  affirm  that  it  is  the  duty  of  the  neutral 
nation  to  prevent  such  trade  on  the  part  of  individuals  by  vigi 
lance  and  penalty.  All  that  can  be  required  of  him  is,  especi 
ally  when  his  opinions  on  the  justice  of  the  war  may  vary 
greatly  from  those  of  his  belligerent  friend,  that  he  should  be 
passive,  while  one  friend  tries  to  obtain  what  he  calls  redress 
from  another.  The  rules  of  war  are  to  be  put  in  force  by  the 
parties  immediately  concerned :  he  is  not  under  obligation  to 
add  to  his  trouble  and  expense  by  a  new  commercial  police. 

The  restrictions  on  neutral  trade  known  to  international 
law  have  related  for  the  most  part 

1.  To  the  conveyance  of  hostile  goods  in  neutral  ships,  and 
of  neutral  goods  in  hostile  ships,  or  to  the  relation  between 
goods  and  vessels  having  different  nationalities ; 


280  OF    THE    RELATIONS    BETWEEN  §  169  b 

2.  To  the  conveyance  of  certain  kinds  of  articles,  having  a 
special  relation  to  war ; 

3.  To  conveyance  to  certain  places  specially  affected  by  the 
operations  of  war ;  and  sometimes 

4.  To  a  trade  closed  before  a  war,  but  open  during  its  con 
tinuance. 

And  in  order  to  carry  those  restrictions  into  effect,  a  right 
of  examination  or  visit  must  be  exercised  upon  vessel,  goods, 
or  both. 

§  169  I. 

We  now  proceed  to  the  rules  of  international  law,  in  regard 
to  the  liability  to  captures  of  ships  and  ffoods  en- 

Nationality         of  -,    .  -,.  ^ 

goods  and  vessel  gaged  in  ordinary  trade. 

as    making   them    *""        -m-  .  -1,1  ,  >i 

liable  or  not  liable  W  e  may  say,  in  general,  that  until  very  recent 
times  two  rules  have  contended  with  one  another, 
— the  rule  that  the  nationality  of  property  on  the  sea  deter 
mines  its  liability  to  capture,  or  neutral  property  is  safe  on  the 
sea  and  enemy's  property  may  be  taken  wherever  found,  and 
the  rule  that  the  nationality  of  the  vessel  determines  the  liabili 
ty  to  capture,  or  that  the  nag  covers  the  cargo.  By  the  first  rule 
the  neutral  might  safely  put  his  goods  into  any  vessel  which 
offered  itself,  but  could  not  convey  the  goods  of  his  friend, 
being  one  of  the  belligerents,  without  the  risk  of  their  being 
taken  by  the  other.  By  the  second,  when  once  the  nationality 
of  the  ship  was  ascertained  to  be  neutral,  it  wTent  on  its  way 
with  its  goods  in  safety,  but  if  it  belonged  to  the  enemy  it  ex 
posed  neutral  goods  on  board,  as  well  as  other,  to  be  taken. 
This  latter  rule  consists  of  two  parts,  that  free  ships  make  free 
goods,  and  that  enemy's  ships  make  goods  hostile,  but  the  two 
are  not  necessarily,  although  parts  of  the  same  principle,  connect 
ed  in  practice ;  the  former  may  be  received  without  the  latter. 
It  was  a  thing  of  secondary  importance  both  for  the  neutral 
and  for  a  belligerent,  being  a  naval  power,  how  the  rules  should 
shape  themselves  in  regard  to  the  neutral's  goods  in  hostile 
bottoms.  And  his  own  goods  on  board  his  own  vessel  were 
freely  admitted  to  be  safe.  Hence  justice  and  a  spirit  of  con- 


§  170  BELLIGERENTS    AND    NEUTRALS.  281 

cession  to  the  neutral  united  in  favor  of  the  rule  that  his  goods 
were  safe,  ty  whatever  vessel  conveyed  ;  although  not  safe  from 
sundry  inconveniences, — from  search  and  from  capture  of  the 
hostile  conveyance. 

On  the  other  hand,  it  was  of  great  importance  to  the  belli 
gerent  that  the  flag  should  not  cover  his  enemy's  goods,  or  that 
free  ships  should  not  make  goods  free ;  for  thus,  much  of  his 
power  at  sea  to  plunder  or  annoy  his  enemy  would  be  taken 
away.  To  the  neutral  the  opposite  rule,  that  free  ships  should 
make  goods  free,  was  of  great  importance ;  for  the  carrying 
trade,  a  part  of  which  war  would  in  other  ways  throw  into  his 
hands,  would  thus  be  vastly  augmented.  But  the  belligerent's 
interests  on  the  whole  prevailed.  The  nations,  especially 
Great  Britain,  which  had  the  greatest  amount  of  commerce, 
had  also  the  greatest  naval  force,  with  wilich  they  could  pro 
tect  themselves  and  plunder  their  foes,  and  therefore  felt  small 
need  in  war  of  hiding  their  goods  in  the  holds  of  neutral  ships. 
Thus  for  a  long  time  the  prevailing  rule  was,  that  neutral  goods 
are  safe  under  any  flag,  and  enemy 's  goods  unsafe  under  any 
flag  But  at  length  neutral  interests  and  the  interests  of  peace 
preponderated  ;  and  the  parties  to  the  treaty  of  Paris  in  1856, 
Great  Britain  among  the  rest,  adopted  for  themselves  the  rule 
which  will  be  valid  in  all  future  wars,  and  is  likely  to  be  uni 
versal,  that  free  ships  are  to  make  goods  free.  Likely  to  be 
universal,  we  say,  unless  a  broader  rule  shall  exempt  all  private 
property  on  the  sea  engaged  in  lawful  trade  from  capture. 

§170. 

The  ship  of  a  neutral  in  which  hostile  goods  are  found,  has 
been  sometimes,  particularly  by  French  and 

0  .  •!>  i     •  Treatment  of  ves- 

Spamsh  ordinances,  treated  as  if   engaged  m  a  eeis      conveying 

M          ,  -,         .    .       ,          .  ,  hostile  goods. 

guilty  business,  and  visited  with  confiscation. 
But  modern  practice,  whilst  it  seized  the  enemy's  goods,  has 
been  in  favor  of  paying  freight  to  such  neutral,  that  is,  not 
freight  for  the  part  of  the  voyage  performed,  lutfor  the  whole, 
capture  of  the  goods  being  regarded  as  equivalent  to  delivery. 
But  a  neutral  ship  engaged  in  the  enemy's  coasting  trade  can- 


282  OF    THE    RELATIONS    BETWEEN  §  170 

not  claim  freight  for  hostile  goods  on  board,  because  it  has  put 
itself  into  the  position  of  a  hostile  vessel.* 

On  the  other  hand,  when  a  hostile  vessel  is  taken  with  the 
neutral's  property  on  board,  the  captor  is  entitled 

Freight  on  neutral  _  .     ,  ,      . 

goods  in  captured  to  freight,  if  the  goods  are  carried  to  their  port  of 

enemy's  vessels.  *%        •  • «    i  i  •     ^ 

destination.  But  if  "  the  goods  are  not  carried  to 
their  original  destination  within  the  intention  of  the  contract 
ing  parties,  no  freight  is  due."  f 

Hostile  ships,  with  whatever  goods  on  board,  have  been 
coast-fisheries  of  uniformly  regarded  as  prizes  of  war.  But  from 
wa?  £y°sSmedna-  tne  operations  of  war  one  class  of  vessels,  engaged 
in  an  eminently  pacific  employment,  and  of  no 
great  account  in  regard  to  national  resources,  has  often  been 
exempted ;  we  refer  to  vessels  engaged  in  coast-fisheries.  It 
appears  that  this  exemption  was  allowed  centuries  ago.  Frois- 
sart  is  cited  as  saying  in  his  Chronicle  that  "  fishermen  on  the 
sea,  whatever  war  there  be  in  France  and  England,  do  no  harm 
to  one  another :  nay,  rather,  they  are  friends  and  aid  one 
another  in  case  of  need."  The  liberty  of  the  enemy's  fishermen 
in  war  has  been  protected  by  many  French  ordinances,  and  the 
English  observed  a  reciprocal  indulgence ;  but  in  1798,  during 
the  French  revolution,  the  latter  government  ordered  its 
cruisers  to  seize  French  and  Dutch  fishermen  and  their  smacks. 
Soon  after,  on  remonstrance  from  the  first  consul  of  France, 
the  order  was  withdrawn,  as  far  as  the  coast-fisheries  in  the 
strict  sense  were  concerned ;  and  during  the  wars  of  the  empire, 
this  peaceful  and  hardy  class  of  laborers  enjoyed  exemption 
from  capture.  In  the  instructions  given  by  the  French  minis 
ter  of  marine  to  naval  officers  in  1854,  at  the  outbreak  of  the 
late  war  with  Russia,  we  find  the  same  rule  followed.  "  You 
must  put  no  hindrance,"  say  the  instructions,  "  in  the  way  of 
the  coast-fishery  even  on  the  coasts  of  the  enemy,  but  you  will 
be  on  your  guard  that  this  favor,  dictated  by  an  interest  of 
humanity,  draws  with  it  no  abuse  prejudicial  to  military  or 
maritime  operations.  If  you  are  employed  in  the  waters  of  the 
White  sea,  you  will  allow  to  continue  without  interruption 

*  Comp.  Wildman,  II.  154.  f  Id.  II.  162. 


§171  BELLIGERENTS    AND    NEUTRALS.  283 

(repression  in  case  of  abuse  excepted)  the  exchange  of  fresh 
fish,  provisions,  utensils  and  tackling,  which  is  carried  on  habi 
tually  between  the  peasants  of  the  Russian  coasts  of  the  pro 
vince  of  Archangel  and  the  fishermen  of  the  coasts  of  Nor 
wegian  Finmark."  Such  has  been  the  practice  of  some  of  the 
principal  Christian  nations  in  protecting  the  coast-fisheries  of 
enemies,  but  as  jet  this  usage  cannot  be  called  a  part  of  inter 
national  law.* 

§  171. 

Having  seen  what  is  the  actual  state  of  international  law 
in  regard  to  neutral  trade,  we  may  now  inquire  Justice  of  the 
whether  any  definite  rule  of  justice  applicable  to  SSwa^S^! 
such  trade  can  be  laid  down. 

Admitting  for  the  present  that  capture  of  private  property 
on  the  sea  is  justifiable,  we  ask  which  of  the  two  principles  is 
comformable  to  justice,  that  which  makes  capture  depend  on 
the  nationality  of  the  conveyance,  or  that  which  makes  it 
depend  on  the  nationality  of  the  property,  whether  ship  or 
goods  ?  Here  we  find 

1.  That  the  conveyance  or  vessel  has  been  claimed  to  be 
territory,  from  which  it  would  follow  that,  by  interfering  with 
neutral  vessels,  the  sovereignty  of  neutral  nations  was  invaded. 
But  the  claim  is  false,  as  has  already  been  shown  (§  54),  and 
seems  to  have  been  devised  just  to  cover  this  particular  case, 
just  to  screen  neutral  ships.  It  is  not  a  claim  admitted  in  the 
law  of  nations :  ships  are  liable  to  search  on  the  ocean,  and  are 
under  the  jurisdiction  of  the  nation  in  whose  ports  they  lie,  to 
neither  of  which  liabilities  territory  is  exposed.  How  can  the 
sea  itself  be  the  territory  of  no  one,  and  a  vehicle  moving  over 
it  have  the  properties  of  terra  firma  f  A  deserted  ship  is  not 
claimed  to  be  territory.  A  ship  with  a  crew  on  board  is  under 
the  protection  and  jurisdiction  of  its  country,  where  no  other 
jurisdiction  interferes ;  that  is,  may  have  certain  properties  of 
territory,  but  n6*t  all  properties.  On  the  other  hand,  if  ships 
were  territory,  it  is  clear  that  all  the  operations  of  war  which 

*  Comp.  Ortolan,  II.  44. 


284:  OF    THE    RELATIONS    BETWEEN  §  ^ 

affect  neutral  vessels  must  be  given  up,  blockade  and  the  pre 
vention  of  contraband  trade,  as  much  as  any  other. 

2.  It  seems  to  be  in  accordance  with  justice,  that  the  na 
tionality  of  the  property  should  determine  the  rules  of  capture. 
The  only  ground  for  taking  certain  things  away  from  private 
persons  is,  that  they  belong  to  the  enemy,  or  that  they  aid  the 
enemy's  operations  in  war.     If  they  are  taken  because  they 
belong  to  the  enemy,  vessels  and  goods  ought  to  share  the  same 
fate :  they  are  equally  private  property,  and  differ  in  no  essen 
tial  respect.     If  they  are  exempt  from  capture  because  they 
belong  to  neutrals,  ships,  and  goods  on  board  any  ship  ought 
to  be  exempt.     The  rule  thus  is  just,  clear,  and  logical. 

3.  The  neutral  has  certainly  a  right  to  take  his  friend's 
goods  on  board  his  ship,  and  an  equal  right  to  put  his  own  on 
board  his  friend's  ship  ;  nor  will  the  fact  that  this  friend  has  an 
enemy  alter  the  case.     Here  the  war-right  of  this  enemy  may 
subject  him  to  great  inconvenience,  but  neither  his  property 
nor  his  wages,  in  the  shape  of  freight,  ought  to  be  taken  from 
him.     He  is  not  guilty  :  why  should  he  suffer  other  than  those 
incidental  evils  w^hich  war  brings  with  it,  and  a  part  of  which 
are  inevitable  ? 

4.  The  establishment  of  the  rule  that  free  ships  make  goods 
free,  is  a  gain  for  humanity  and  a  waiver  of  justice.     Hence  we 
hail  it  as  inaugurating  an  era  more  favorable  to  peace.     All  this 
on  the  admission  that  private  property  may  rightfully  be  taken 
on  the  ocean :  if  it  cannot  be,  or  it  is  expedient  that  it  should 
not  be,  the  same  rule  is  a  movement  in  the  right  direction.* 

*  Mr.  Reddie  (in  his  Researches  in  maritime  international  law,  I.  p.  468,  cited  by 
Ortolan,  for  I  have  not  access  to  the  work),  remarks  that  it  is  doubtful  whether  the 
neutral  gains  anything  by  the  rule,  "  free  ships,  free  goods."  For  the  carrying  trade 
of  hostile  property  must  come  to  an  end,  as  soon  as  peace  is  made,  and  the  neutral's 
capital  must  then  be  turned  into  another  channel.  But  if  the  belligerent's  property 
be  liable  to  seizure,  goods  as  well  as  ship  will  belong  to  the  neutral,  and  his  capital 
thus  invested  will  stimulate  all  branches  of  home  industry,  and  probably  be  longer 
able  to  retain  the  channel  which  was  opened  to  it  by  the  war.**  There  is  something 
in  this,  but  most  wars  are  too  short  to  keep  the  powers  at  war  from  returning  to 
their  old  usages  of  trade  at  the  peace.  Besides,  the  annoyance  of  the  neutral  is  a 
very  great  evil,  and  his  loss  may  be  great. 


172  BELLIGERENTS    AND    NEUTRALS.  285 


In  the  course  of  the  centuries  during  which  international 
law  has  been  growing  up,  rules  have  been  fluctu-  Fonner  ractice 
ating  as  it  respects  the  liabilities  of  neutral  trade,  j^gjj£  to  neu- 
and  conventional  law  has  often  run  counter  to 
prevailing  rules.  We  propose  here  to  give  some  brief  historical 
illustrations  of  the  former  law  and  practice. 

First,  the  leading  results  of  a  historical  examination  seem 
to  be  something  like  the  following  : 

1.  That  of  old  in  mediaeval  Europe  there  probably  was  a 
feeling  that  neutral  trade  might  be  made  unlawful  by  either 
belligerent  at  any  time,  and  that  the  permission  of  such  trade 
was  looked  upon  as  a  concession.     This  explains  the'  custom 
of  confiscating  the  neutral  ship  with  hostile  goods  on  board, 
which  was  more  or  less  prevalent. 

2.  That  from  the  time  when  commerce  by  sea  began  to  be 
a  great  interest,  neutrals  could  carry  hostile  goods  on  their 
ships  with  the  liability  of  only  such  goods  to  capture,  and 
generally  without  risk  to  the  vessel,  save  of  detention,  search, 
and  change  of  course  ;  and  could  put  their  own  goods  on  hos 
tile  ships  without  danger  of  confiscation. 

3.  That  treaties  and  ordinances  during  the  17th  and  18th 
centuries  often  modified  what  may  be  called  the  prevailing 
usage,  and  differed  so  much  from  one  another,  as  to  show  that 
no  principle  ran  through  them.     Many  of  the  treaties  gave 
large  freedom  to  neutral  carriers,  and  some  ordinances,  espe 
cially  in  France  and  Spain,  established  a  very  harsh  rule  to 
wards  them.     In  general,  where  by  treaty  free  ships  made 
goods  free,  this  was  coupled  with  the  rule,  that  hostile  ships 
made  goods  hostile,  or  the  nationality  of  the  vessel  determined 
the  character  of  the  transaction. 

4.  That  from  the  last  quarter  of  the  18th  century  neutral 
nations  endeavored  to  force  on  the  world  the  rule,  "  free  ships, 
free  goods,"  which  was  resisted,  and  prevented  from  entering 
into  the  law  of  nations  by  Great  Britain,  the  leading  maritime 
power. 


286  OF    THE    RELATIONS    BETWEEN  §  173 

i 

5.  That  since  the  peace  of  1815,  in  Europe,  the  importance 
of  pacific  relations  and  the  power  of  capital  have  brought  about 
a  change  of  views  in  regard  to  international  policy,  until  the 
rule  above  mentioned  has  nearly  prevailed,  and  there  are  not 
wanting  indications  of  a  still  larger  liberty  of  maritime  com 
merce. 

§173. 

One  of  the  earliest  provisions  of  mediaeval  Europe  within 
Historical  niuBtra-  our  knowledge,  is  to  be  found  in  a  treaty  between 
tions-  Aries  and  Pisa,  of  the  year  1221.  It  is  there  pro 

vided,  that  in  case  any  goods  of  Genoese  or  other  public  enemies 
of  Pisa  are  found  in  a  ship  with  men  of  Aries,  the  men  of  Aries 
shall  not  make  them  their  own,  or  defend  them  on  their  own 
account ;  and  that  during  the  continuance  of  the  war  between 
Pisa  and  Genoa,  it  may  be  lawful  for  the  Pisans  to  treat  men 
of  Aries,  if  found  on  Genoese  vessels,  and  their  goods,  as  if 
Genoese,  and  to  retain  such  goods  when  taken  without  restor 
ing  them,  or  causing  them  to  be  restored.* 

This,  however,  may  have  been  a  temporary  and  exceptional 
Consoiato  del  convention  between  the  two  cities.  But  a  little 
mare-  later,  at  the  end  of  the  13th  or  beginning  of  the 

14th  century,  we  meet  with  a  code  of  wide  influence,  the  Con 
soiato  del  mare  (comp.  App.  I.)  which  is  remarkable,  as  being  the 
only  ancient  sea-code  that  speaks  of  neutral  rights  in  war.  In 
chapter  231  of  this  code  (Pardessus,  II.  303-307),  it  is  provided, 
that  if  a  ship  that  is  captured  belongs  to  friends,  and  the 
merchandise  on  board  to  enemies,  the  commander  of  the  cruiser 
may  force  the  master  of  the  captured  vessel  to  bring  him  the 
hostile  goods,  and  even  to  keep  them  in  his  own  vessel,  until 

*  Pardessus,  Collection  des  lois  mar.  II.  303,  refers  to  this  treaty,  which  is  to  be 
found  in  Muratori's  Antiq.  Ital.  IV.  Col.  398,  as  illustrating  the  usage  that  the 
merchandise  of  a  friend,  although  put  on  board  an  enemy's  vessel,  ought  to  be 
respected.  But  it  shows  just  the  contrary.  The  text  of  the  latter  part  is  "  si  forte 
aliquis  Arelatensis  cum  Januensi,  donee  guerra  inter  Pisanos  et  Januenses  fuerit,  a 
Pisanis  inventus  fuerit,  in  eorum  navibus,  eundo  vel  redeundo,  liceat  Pisanis  .  .  . 
Arelatensibus  [that  is,  Arelatenses]  et  res  eorum  tamquam  Januensium  offendere  et 
capere,  et  capta  retinere,  et  non  reddere  nee  reddi  facere." 


§  173  BELLIGERENTS    AND    NEUTRALS.  287 

it  is  brought  into  a  place  of  safety ;  but  it  is  to  be  understood 
that  the  captured  ship  be  carried  in  tow  to  a  place  where  there 
shall  be  no  fear  of  enemies, — the  commander  of  the  cruiser 
paying,  however,  all  the  freight  due  for  carrying  the  cargo  to 
the  place  of  unloading,  etc. 

Another  provision  of  the  same  chapter  is  to  the  effect  that, 
if  the  ship  taken  be  hostile  with  a  cargo  belonging  to  friends 
on  board,  the  merchants  in  the  ship,  and  to  whom  the  cargo  in 
whole  or  in  part  pertains,  ought  to  arrange  with  the  captain 
of  the  captor  to  ransom  the  prize,  and  that  he  ought  to  offer  it 
to  them  at  a  reasonable  price.  But  if  the  merchants  will  not 
make  a  bargain,  he  is  to  have  the  right  to  send  it  into  the  port 
where  his  vessel  was  equipped,  (?)  and  the  merchants  are  ob 
liged  to  pay  the  freight, — just  as  if  he  conveyed  the  goods  to 
the  port  of  destination, — and  nothing  more  than  that  freight. 
The  code  then  goes  on  to  speak  of  injuries  suffered  by  the  neu 
tral  merchants  from  the  arrogance  or  violence  of  the  captor,  in 
which  case,  besides  being  relieved  from  paying  freight,  they 
shall  receive  compensation.* 

According  to  Mr.  Manning,  all  the  treaties  before  the  17th 
century  coincide  with  the  Consolato  del  mare,  in  regard  to  the 
liability  to  capture  of  enemies'  goods  on  board  neutral  vessels. 
In  1417,  an  engagement  between  Henry  Y.  of  England  and 
the  Duke  of  Burgundy  (Jean-sans-peur),  contained  the  stipula 
tion  that  goods  of  Flemings,  who  were  the  duke's  subjects,  on 
board  ships  of  Genoa,  then  at  war  with  England,  should  be 
forfeited,  if  captured,  as  lawful  prize.  "  This  is  the  only  in 
stance  I  have  met  with,"  says  Mr.  Manning,  "  in  which  the 
claim,  that  neutral  goods  found  in  an  enemy's  ship  are  liable 
to  capture  as  lawful  prize,  has  ever  been  asserted  or  even  been 
specified  by  this  country,  unless  in  return  for  the  stipulation 
that  enemies'  goods  are  free  in  a  neutral  ship." 

*  Mr.  Manning  cites  this  as  chap.  273,  others  as  chap  276. — In  the  remainder  of 
these  historical  illustrations,  and  in  those  pertaining  to  contraband,  blockade,  and 
search,  I  have  been  greatly  assisted  by  Mr.  Manning's  work. 


288  OF    THE    RELATIONS   BETWEEN  §  174 

§1T4. 

In  the  17th  century,  and  onward,  until  toward  the  end  of 
the  18th,  no  general  rule  runs  through  conventional  law:  the 
same  states  are  found  to  make  treaties  of  directly  opposite 
character  at  the  same  epoch.  The  Dutch,  being  the  principal 
carriers  of  Europe,  aimed  to  put  their  trade  on  a  footing  of 
security  ;  and  the  first  treaty  between  Christian  powers  contain 
ing  the  principle,  "  free  ships,  free  goods,"  v\*as  one  between 
the  United  Provinces  and  Spain  in  1650.  We  say  between 
Christian  powers,  because  a  treaty  of  France  with  the  Porte, 
in  1604,  contained  the  same  provision.  In  1654  England,  in 
a  treaty  with  Portugal,  for  the  first  time  agreed  that  the  ship 
should  cover  the  cargo ;  while  in  a  treaty  of  the  same  year 
with  the  Dutch  republic,  the  old  rule  touching  the  liabilities 
of  hostile  goods  continued.  Again,  in  the  treaty  of  Breda, 
made  by  these  same  two  powers,  in  1667,  free  ships  make  free 
goods  for  the  first  time  in  their  diplomatic  intercourse,  while  a 
treaty  of  England  with  Denmark  makes  no  change  in  the  old 
usage.  By  the  treaty  of  the  Pyrenees,  in  1659,  renewed  in 
1668,  France  and  Spain  agreed  that  the  cargo  should  follow 
the  liabilities  of  the  ship,  whether  neutral  or  hostile,  of  which 
rule  the  Dutch  secured  the  benefit  in  their  intercourse  with 
these  two  states  in  1661.  Many  treaties  of  the  close  of  Century 
XVII.  enlarge  the  privileges  of  neutrals,  as  that  of  Nymwegen 
in  1678,  and  of  Kyswick  in  1697,  as  far  as  France  and  the 
Dutch  were  concerned.  In  the  commercial  treaties  connected 
with  the  peace  of  Utrecht  in  1713,*  the  analogy  of  the  peace 
of  the  Pyrenees  was  followed,  in  making  all  goods  in  neutral 
bottoms  free,  and  in  hostile  liable  to  capture.  A  similar  stipu 
lation  appears  afterwards  in  a  treaty  of  1762,  between  Russia 
and  Sweden,  and  in  that  of  France  with  the  United  States, 
when  she  acknowledged  their  independence,  in  1778.  Thus, 
while  earlier  usage  and  many  treaties  protected  neutral  prop 
erty,  wherever  found,  but  not  enemies'  property,  many  impor 
tant  treaties  of  the  century  before  1780,  gave  freedom  to  the 
neutral  ship  and  to  whatever  it  contained,  but  not  to  neutral 
goods  on  an  enemy's  vessel. 

*  See  Dumont,  VIII.  1,  p.  348,  Arts.  XVII,  XVIII. 


§174  BELLIGERENTS   AND   NEUTRALS.  289 

The  law  of  France,  meanwhile,  followed  by  that  of  Spain, 
was  severe  towards  neutrals  with  whom  no  treaty  existed. 
The  edict  of  Henry  III.,  given  out  in  1584,  formally  confiscates 
neutral  goods  on  enemies'  vessels,  as  well  as  enemies'  on  neu 
tral  vessels.     The  maritime  ordinance  of  Louis  XI Y.,  framed 
in  1681,  went  farther  still.     It  contains  the  following  article : 
"All  ships  laden  with  the  goods  of  our  enemies,  and  the 
merchandise  of  our  subjects  or  allies  found  in  an  enemy's  vessel, 
shall  be  lawful  prize."     By  allies  here,  not  allies  in  war,  but 
neutrals  were  aimed  at,  as  it  appears  by  an  arret  made  a  few 
years  afterward.     Things  continued  thus  until  in  1744,  under 
Louis  XV.,  a  regulation  freed  neutral  ships  from  the  infection 
of  the  hostile  cargo,  but  the  same  enactment  ordained  that 
neutral  goods,  the  growth  or  fabric  of  enemies,  should  be  con 
fiscated.     Again,  in  1778,  under  Louis  XVI.,  a  regulation 
contained  an  implied  sanction  of  the  maxim,  that  the  neutral 
flag  covers  the  cargo,  coupling  it,  however,  like  the  treaty  of 
the  Pyrenees  and  others,  with  the  opposite,  that  the  hostile 
flag  exposes  the  cargo ;  and  these  maxims  have  governed  the 
conduct  of  France  towards  neutrals  since  then  until  recent 
times,  with  the  exception  of  her  retaliatory  measures  under 
Kapoleon  towards  England,  the  effects  of  which  fell  heavily  on 
neutrals.     Spain,  in  1702  and  1Y18,  followed  the  legislation  of 
the  elder  Bourbon  line,  and  in  1779  adopted  the  relaxation 
proclaimed  in  France  the  year  before.* 

The  armed  neutrality  set  on  foot  in  1780  was  a  plan  to 
escape  from  the  severe  but  ancient  way  of  dealing  First  armed  neu. 
with  neutrals  which  Great  Britain  enforced,  by  trality- 
advancing  certain  milder  principles  of  international  law. 
These  were,  that  neutral  vessels  had  a  right  to  sail  in  freedom, 
from  harbor  to  harbor  and  along  the  coasts  of  belligerents ; 
that  the  property  of  enemies  not  contraband  of  war  on  neutral 
ships  should  be  free ;  that  a  port  is  blockaded  only  when  evi 
dent  danger  attends  on  the  attempt  to  run  into  it ;  that  by 
these  principles  the  detention  and  condemnation  of  neutral 
ships  should  "be  determined ;  and  that,  when  such  vessels  had 

*  Comp.  Ortolan,  II.  86,  et  seq.,  esp.  93 
19 


290  OF    THE    RELATIONS    BETWEEN  §  174 

been  unjustly  used,  besides  reparation  for  loss,  satisfaction 
should  be  made  to  the  neutral  sovereign.  The  parties  to  this 
league  engaged  to  equip  a  fleet  to  maintain  their  principle1,  and 
were  to  act  in  concert.  These  parties  were,  besides  Russia, 
which  announced  the  system  to  the  powers  at  war,  and  invited 
other  neutrals  to  cooperation,  Denmark,  Sweden,  the  Dutch 
provinces,  Prussia,  Austria,  Portugal,  and  Naples.  Two  of 
the  belligerents,  France  and  Spain,  concurred,  but  the  other, 
England,  replied  that  she  stood  by  the  law  of  nations  and  her 
treaties.  England  had  reason  to  complain  of  this  league,  be 
cause  some  of  the  parties,  then  at  peace  with  her, — Sweden 
and  Denmark, — were  at  the  time  held  by  treaty  with  her  to 
just  the  contrary  principle ;  while  others  had  even  punished 
neutral  ships  for  what  they  now  claimed  to  be  a  neutral  right. 
The  first  armed  neutrality  did  little  more  than  announce  a 
principle,  for  no  collision  took  place  between  them  and  Great 
Britain ;  but  it  formed  an  epoch,  because  in  no  previous  arrange 
ment  between  Christian  states  had  the  rule,  "  free  ships,  free 
goods,"  been  separated  from  the  opposite,  "  unfree  or  hostile 
ships,  hostile  goods."  In  the  peace  of  Versailles,  which  in 
ITS 3  terminated  the  war  between  England  and  France  grow 
ing  out  of  our  revolution,  the  two  powers  returned  to  the 
stipulations  of  the  peace  of  Utrecht  which  have  been  mentioned 
above. 

In  the  opening  years  of  the  French  revolution  England 
recovered  her  influence  over  the  powers  of  Europe,  and  several 
of  them  abandoned  or  suspended  the  rule  for  which  in  great 
measure,  the  armed  neutrality  was  formed.  And  the  national 
convention  of  France,  in  1793,  decreed  that  enemy's  goods  on 
board  neutral  vessels,  but  not  the  vessels  themselves,  should  be 
lawful  prize,  and  that  freight  should  be  paid  to  the  captor. 

The  United  States,  in  treaties  with  foreign  powers,  have 
Treaties  of  the  generally  aimed  to  extend  the  rights  of  neutral 
carriers  as  far  as  possible.  In  some  conventions, 
however,  as  in  that  with  Spain  in  1819,  with  Columbia  in 
1824,  with  Central  America  in  1825,  a  somewhat  cumbrous 
rule  of  reciprocity  has  been  followed,  namely,  that  free  ships 


§175  BELLIGERENTS    AND    NEUTRALS.  291 

shall  make  goods  free,  only  so  far  as  those  powers  are  concern 
ed  which  recognize  the  principle.  But  in  the  treaty  with 
England,  in  1795  (comp.  §  118),  it  is  agreed  that  the  property 
of  enemies  on  neutral  vessels  may  be  taken  from  them.  And 
in  one  made  with  France  in  1800,  the  maxim  that  hostile  ships 
infect  the  cargo  goes  along,  as  was  then  not  unusual,  with  the 
freedom  of  neutral  vessels. 

Twenty  years  after  the  first  armed  neutrality  a  second  was 
formed,  to  which  Russia,  the  Scandinavian  powers  Second  armed 
and  Prussia  were  parties  ;  and  which  derived  the  neutrality  of  180°- 
pretext  for  its  formation  from  differences  of  opinion  concerning 
convoy  (§  191),  as  well  as  from  certain  violations  of  neutral 
rights  by  English  cruisers  in  the  case  of  a  Swedish  vessel.  The 
platform  of  this  alliance  embraced  much  the  same  principles 
as  that  of  1780,  together  with  new  claims  concerning  convoy. 
But  nothing  was  gained  by  it  saving  some  trifling  concessions 
from  Great  Britain  (§  191,  u.  s.),  while  Russia,  Denmark  and 
Sweden,  ere  long  gave  in  their  adherence  to  the  English  views 
of  neutral  liabilities. 

§175. 

During  the  years  between  1814  and  1854,  which  were  dis 
turbed  by  no  important  European  war,  the  rules  Ruleeof  the  peace 
of  war  respecting  neutral  trade  were  of  no  im-  ofparisin  1856- 
mediate  importance.  On  the  breaking  out  of  the  short  but 
important  Crimean  war,  notice  was  given  by  Great  Britain 
and  France,  that  for  the  present  the  commerce  of  neutrals  with 
Russia  would  not  be  subjected  to  the  strict  operation  of  the 
rights  of  war  as  commonly  understood.*  At  the  peace  of 

*  The  concurrent  declarations  of  England  and  France  in  their  English  dress  were 
as  follows,  under  date  of  March  28-29,  1854. 

"  Her  Majesty,  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
having  been  compelled  to  take  up  arms  in  support  of  an  ally,  is  desirous  of  rendering 
the  war  as  little  onerous  as  possible  to  the  powers  with  whom  she  remains  at  peace. 

"  To  preserve  the  commerce  of  neutrals  from  all  unnecessary  obstruction,  Her 
Majesty  is  willing  for  the  present  to  waive  a  part  of  the  belligerent  rights  appertain 
ing  to  her  by  the  law  of  nations. 

"  It  is  impossible  for  Her  Majesty  to  forego  the  exercise  of  her  right  of  seizing 


292  OF    THE    RELATIONS    BETWEEN  §  175 

Paris  in  1856,  the  principles  foreshadowed  in  the  declaration 
of  the  belligerents,  which  appear  in  the  note  below,  were  em 
bodied  in  a  declaration  to  which  all  the  parties  to  the  treaty 
subscribed.  "We  have  often  spoken  of  these  declarations,  which 
form  an  epoch  in  the  history  of  international  law,  but  we  here 
insert  them  in  full,  although  but  one  of  them  refers  to  our 
present  subject. 

1.  Privateering  is  and  remains  abolished.  (§  122.) 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  excep 
tion  of  contraband  of  war. 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  an  enemy's  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effective ; 
that  is  to  say,  maintained  by  a  force  sufficient  really  to  prevent 
access  to  the  coast  of  an  enemy. 

Other  powers  were  to  be  invited  to  accede  to  these  articles, 
but  only  in  solidarity  and  not  separately.  The  third  and 
fourth  being  already  received  by  Great  Britain,  the  abandon 
ment  of  privateering  must  be  regarded  as  her  motive  for  waiv 
ing  her  old  and  fixed  doctrine  in  regard  to  the  liability  to  cap 
ture  of  hostile  goods  on  board  a  neutral  vessel.  The  minor 
powers  of  Europe,  whose  interests  lie  on  the  side  of  neutral 
privileges,  have  already  acceded  or  are  likely  to  accede  to  this 
declaration.  The  negative  reply  of  the  United  States  to  an 
invitation  to  do  the  same,  with  its  reasons,  has  been  already 
given  in  §  122.  If  the  larger  exemption  of  all  innocent  private 
property  from  the  liabilities  of  war,  to  which  the  United  States 
offers  to  be  a  party,  should  become  incorporated  in  the  law  of 

articles  contraband  of  war,  and  of  preventing  neutrals  from  bearing  the  enemy's 
despatches,  and  she  must  maintain  the  right  of  a  belligerent  to  prevent  neutrals  from 
breaking  any  effective  blockade,  which  may  be  established  with  an  adequate  force 
against  the  enemy's  forts,  harbors  or  coasts. 

"  But  Her  Majesty  will  waive  the  right  of  seizing  enemy's  property,  laden  on 
board  a  neutral  vessel,  unless  it  be  contraband  of  war. 

"It  is  not  Her  Majesty's  intention  to  claim  the  confiscation  of  neutral  property, 
not  being  contraband  of  war,  found  on  board  enemy's  ships,  and  Her  Majesty  further 
declares  that,  being  anxious  to  lessen  as  much  as  possible  the  evils  of  war,  and  to 
restrict  its  operations  to  the  regularly  organized  forces  of  the  country,  it  is  not  her 
^resent  intention,  to  issue  letters  of  marque  for  the  commissions  of  privateers." 


§  176  BELLIGERENTS   AND    NEUTRALS.  293 

nations,  her  attitude  will  have  been  one  of  great  advantage  to 
the  world.  If  not,  her  plea  of  self-defence  in  keeping  up  the 
system  of  privateering  will  probably  be  regarded  in  another 
age  as  more  selfish  than  wise. 

§176. 

Until  about  the  middle  of  the  eighteenth  century  writers 
on  the  law  of  nations  for  the  most  part  held,  that  Opiniong  of  pub. 
neutral  goods  were  safe  in  any  vessel,  and  hostile  Iicl8ts>  etc> 
liable  to  capture  in  any  vessel.  Some  of  the  earlier  writers,  as 
Grotius,  Zouch  and  Loccenius,  go  beyond  this  rule  in  severity 
towards  the  neutral  ship,  and  seem  to  think  that  if  the  owners 
admitted  hostile  property  on  board,  the  vessel  might  be  made 
prize  of.  They  also  lay  it  down  that  goods  on  hostile  vessels 
belong  presumptively  to  the  enemy,  but  may  be  saved  from 
harm  on  proof  to  the  contrary.  Bynkershoek  in  1737,  and 
Yattel  in  1758,  state  the  doctrine  as  it  has  been  understood  by 
those  who  maintain  that  enemy's  goods  on  neutral  vessels  but 
not  neutral  on  enemy's  vessels  are  lawful  prize.  The  latter 
expresses  himself  thus :  "  If  we  find  an  enemy's  effects  on  board 
a  neutral  ship,  we  seize  them  by  the  rights  of  war ;  but  we  are 
naturally  bound  to  pay  the  freight  to  the  master  of  the  vessel 
who  is  not  to  suffer  by  such  seizure.  The  effects  of  neutrals 
found  in  an  enemy's  ship  are  to  be  restored  to  the  owner, 
against  whom  there  is  no  right  of  confiscation ;  but  without 
any  allowance  for  detainer,  decay,  etc.  The  loss  sustained  by 
the  neutrals  on  this  occasion  is  an  accident,  to  which  they  ex 
posed  themselves  by  embarking  their  property  in  an  enemy's 
ship ;  and  the  captor,  in  exercising  the  rights  of  war,  is  not 
responsible  for  the  accidents  which  may  thence  result,  any 
more  than  if  his  cannon  kills  a  neutral  passenger  who  happens 
unfortunately  to  be  on  board  an  enemy's  vessel."  Mr.  Man 
ning  cites  Moser  (1780)  and  Lampredi  (1788)  to  the  same 
effect.  English  authorities  are  unanimous  in  declaring  these 
to  be  rules  of  international  law.  Our  supreme  court,  and  our 
principal  writers  on  this  branch,  take  the  same  ground.  Chan 
cellor  Kent  says :  "  The  two  distinct  propositions,  that  enemy's 


294:  OF   THE    RELATIONS   BETWEEN  §  176 

goods  found  on  board  a  neutral  ship  may  be  lawfully  seized  as 
prize  of  war,  and  that  the  goods  of  a  neutral  found  on  board 
an  enemy's  vessel  are  to  be  restored,  have  been  explicitly 
incorporated  into  the  jurisprudence  of  the  United  States,  and 
declared  by  the  supreme  court  to  be  founded  on  the  law  of 
nations.  I  should  apprehend  the  belligerent  right  to  be  no 
longer  an  open  question ;  and  that  the  authority  and  usage  on 
which  that  right  rests  in  Europe,  and  the  long,  explicit,  and 
authoritative  admission  of  it  by  this  country,  have  concluded 
us  from  making  it  a  subject  of  controversy ;  and  that  we  are 
bound  in  truth  and  justice  to  submit  to  its  regular  exercise,  in 
every  case,  and  with  every  belligerent  power  who  does  not 
freely  renounce  it."  *  Again,  Dr.  "Wheaton  says  :  "  Whatever 
may  be  the  true,  original,  abstract  principle  of  natural  law  on 
this  subject,  it  is  undeniable  that  the  constant  usage  and  prac 
tice  of  belligerent  nations,  from  the  earliest  times,  have  subject 
ed  enemy's  goods  in  neutral  vessels  to  capture  and  condemna 
tion,  as  prize  of  war.  This  constant  and  universal  usage  has 
only  been  interrupted  by  treaty-stipulations,  forming  a  tem 
porary  conventional  law  between  the  parties  to  such  stipula 
tions."  "  The  converse  rule,  which  subjects  to  confiscation  the 
goods  of  a  friend  on  board  the  vessels  of  an  enemy,  is  manifest 
ly  contrary  to  truth  and  justice."  f 

The  opposite  doctrine,  in  regard  to  enemy's  goods  on  neu 
tral  vessels,  was  first  maintained  by  a  Prussian  commission  ap 
pointed  to  look  into  the  complaints  of  certain  merchants  who 
had  had  French  goods  taken  out  of  their  vessels  by  English 
cruisers  in  1744.  They  venture  to  affirm  that  such  conduct  is 

*  I.  129-131,  Lect.  VI. 

f  El.  IV.  8,  §§  19,  21.  It  may  be  added  that  the  United  States,  in  their  diplo 
matic  intercourse  with  foreign  governments,  have  long  claimed  it  to  be  a  neutral 
right  that  free  ships  should  make  free  goods.  Mr.  Marcy,  in  1854,  in  a  note  to  the 
British  envoy  at  Washington,  expresses  the  President's  satisfaction  that  "  the  princi 
ple  that  free  ships  make  free  goods,  which  the  United  States  have  so  long  and  so 
strenuously  contended  for  as  a  neutral  right,  is  to  have  a  qualified  sanction  "  in  the 
war  of  England  and  France  with  Russia.  He  means  probably  no  more  than  that 
this  is  a  fair  and  just  claim  of  neutrals,  not  that  it  is  an  admitted  one,  or  a  part  of 
actual  international  law.  And  such  we  believe  to  have  been  the  ground  previously 
taken. 


§176  BELLIGERENTS    AND    NEUTRALS.  295 

not  only  contrary  to  the  law  of  nations,  but  also  to  all  the  trea 
ties  which  were  ever  concluded  between  maritime  powers, — 
two  propositions  which  are  equally  untenable.  In  1759, 
Martin  Hiibner,  a  professor  at  Copenhagen,  claimed  that  this 
principle  ought  to  be  admitted  into  international  law ;  and 
chiefly  on  two  grounds,  first  that  neutral  ships  are  neutral  ter 
ritory,  and  again  that  commerce  is  free  to  neutrals  in  war  as 
well  as  in  peace ;  since  war  ought  not  to  injure  those  who  are 
not  parties  in  the  contest.  In  more  recent  times  several  writers 
on  the  law  of  nations  have  taken  the  same  position.  Thus  IOii- 
ber  says,  "  On  the  open  sea  every  ship  is  exterritorial  in  refer 
ence  to  every  state  except  its  own  :  a  merchant  ship  is  to  be 
looked  on  as  a  floating  colony.  Therefore  a  belligerent  power 
on  the  open  sea  ought  to  be  permitted  neither  to  visit  a  neutral 
vessel,  nor  to  take  hostile  goods  out  of  it,  still  less  to  confiscate 
the  ship  on  account  of  the  goods  found  in  it."  And  again,  "A 
belligerent  power  ought  to  be  allowed  as  little  to  confiscate 
neutral  goods  found  on  an  enemy's  vessel,  as  if  they  had  been 
met  with  on  the  soil  of  the  enemy's  territory."  De  Martens 
holds  to  the  freedom  of  neutral  ships.*  Ortolan,  while  reject 
ing  this  ground,  turns  to  sounder  principles  of  natural  justice. 
"  If  the  goods,"  says  he,  "  put  on  board  a  neutral  vessel  have 
not,  of  themselves,  a  hostile  character,  that  the  neutral  should 
take  pay  lor  his  ship  and  for  the  labor  of  his  sailors,  has  nothing 
in  it  irreconcilable  with  the  duties  of  neutrality.  Why  then 
should  a  belligerent  obstruct  such  trade  by  seizing  the  cargo  ? 
Is  it  not  legitimately  in  the  hands  of  friends,  who  have  made 
and  have  had  the  right  to  make  a  bargain  to  carry  it  for  pay 
to  a  place  agreed  upon,  and  who,  apart  from  the  freight,  have 
an  interest  in  securing  its  preservation,  since  on  this  may  de 
pend  the  success  or  failure  of  the  commercial  enterprise  in 
which  they  are  engaged  ?  And  in  hindering,  by  the  confiscation 
of  goods  transported,  this  commerce  of  freight  and  commission, 
do  not  belligerents  abuse  the  principle,  which  permits  them 
to  capture  enemy's  property  on  the  sea,  by  pushing  this  prin- 

*  Kliiber,  §  299,  p.  354,  ed.  in  German  of  1851.     De  Martens,  §  316,  vol.  II. 
322,  Paris  ed.  of  1858. 


296  OF    THE    RELATIONS    BETWEEN  §  177 

ciple  into  consequences  which  unjustly  attack  the  independence 
and  essential  rights  of  friendly  nations  ? "  He  adds,  that  the 
practice  of  paying  freight  for  the  goods  thus  taken  out  of  neu 
tral  ships  contains  a  kind  of  confession  that  the  neutral  has 
sustained  an  injury,  whilst  yet  the  payment  of  freight  is  by  no 
means  an  adequate  compensation  for  all  their  losses. 

§177. 

While  the  neutral  can  put  his  goods  on  the  merchant  vessel 
of  either  of  the  belligerents  in  safety,  it  has  been 

Neutral  property  ,"  ' 

inarmed  enemies'  made  a  question  whether  he  can  make  use  of  their 

vpsapla  •*• 


armed  vessels  for  that  purpose.  The  English 
courts  have  decided  against,  and  the  American  courts  in  favor 
of  the  neutral's  using  such  a  conveyance  for  his  goods.  On  the 
one  hand  it  may  be  said,  that  in  this  act  an  intention  is  shown 
to  resist  the  right  of  search,  and  the  inconveniences  of  capture, 
and  of  transportation  to  a  port  such  as  the  captor  may  select. 
On  the  other  hand,  the  neutral,  his  goods  being  safe  already, 
has  perhaps  no  great  motive  to  aid  in  resistance,  for  the  com 
plete  loss  of  his  goods  is  endangered  by  an  armed  engagement. 
If,  however,  the  neutral  can  be  shown  to  have  aided  in  the 
arming  of  the  vessel,  it  is  just  that  he  should  suffer. 

The  decision  of  this  case,  as  Chancellor  Kent  observes,*  is 
of  very  great  importance.  Yet  with  the  discontinuance  of  pri 
vateering  such  cases  would  cease,  for  few  ships  will  be  armed 
with  the  purpose  to  resist  ships  of  war. 


Contrdbannum,  in  mediaeval  Latin,  is  merces  ~banno  inter- 
contraband  of  dicta.  (Du  Cange.)  JBannus,  or  ~bannum,  repre 
sented  by  our  ~ban,  and  the  Italian  ~bando,  denoted 
originally  an  edict,  a  proclamation,  then  an  interdict.  The 
sovereign  of  the  country  made  goods  contraband  by  an  edict 
prohibiting  their  importation  or  their  exportation.  Such  pro 
hibitions  are  found  in  Eoman  law.  A  law  of  Yalentinian  and 
his  colleagues  (Cod.  IY.  41,  1),  forbids  the  exportation  of  wine, 

*  I.  132,  Lect.  VI. 


§  178  BELLIGERENTS    AND    NEUTRALS.  297 

oil,  and  fish-sauce  (liquamen)  to  barbarian  lands,  and  another 
of  Marcian  (ibid.  2),  the  selling  of  any  arms  or  iron  to  barbari 
ans,  the  latter  on  pain  of  confiscation  of  goods  and  death. 
Several  Popes  threatened  with  the  ban  the  conveyance  of  arms 
to  infidels,  and  similar  prohibitions  are  found  in  some  of  the 
ancient  maritime  codes.  Contraband  of  war  perhaps  denoted 
at  first  that  which  a  belligerent  publicly  prohibited  the  expor 
tation  of  into  his  enemy's  country,  and  now,  those  kind  of 
goods  which  by  the  law  of  nations  a  neutral  cannot  send  into 
either  of  the  countries  at  war  without  wrong  to  the  other,  or 
which  by  conventional  law  the  states  making  a  treaty  agree 
to  put  under  this  rubric.* 

If  there  was  a  famine  in  one  of  the  countries  at  war, 
and  a  friendly  power  should  send  provisions  thither,  either  at 
the  public  expense  or  for  a  compensation,  the  act  would  be  a 
lawful  one.  But  if  the  neutral,  instead  of  wheat,  should 
send  powder  or  balls,  cannon  or  rifles,  this  would  be  a  di 
rect  encouragement  of  the  war,  and  so  a  departure  from  the 
neutral  position.  The  state  which  professed  to  be  a  friend  to 
both  has  furnished  one  with  the  means  of  fighting  against  the 
other,  and  a  wrong  has  been  done.  Now  the  same  wrong  is 
committed  when  a  private  trader,  without  the  privity  of  his 
government,  furnishes  the  means  of  war  to  either  of  the  war 
ring  parties.  It  may  be  made  a  question  whether  such  conduct 
on  the  part  of  the  private  citizen  ought  not  to  be  prevented  by 
his  government,  even  as  enlistments  for  foreign  armies  on  neu 
tral  soil  are  made  penal.  But  it  is  difficult  for  a  government 
to  watch  narrowly  the  operations  of  trade,  and  it  is  annoying 
for  the  innocent  trader.  Moreover,  the  neutral  ought  not  to 
be  subjected  by  the  quarrels  of  others  to  additional  care  and 
expense.  Hence  by  the  practice  of  nations  he  is  passive  in  re 
gard  to  violations  of  the  rules  concerning  contraband,  block 
ade  and  the  like,  and  leaves  the  police  of  the  sea  and  the  pun 
ishing  or  reprisal  power  in  the  hands  of  those  who  are  most 

*  The  explanation  of  contrabannum  from  the  church  ban  laid  on  the  carrying 
of  arms,  etc.,  to  the  enemies  of  Christianity,  seems  to  be  less  worthy  of  acceptation 
than  that  given  in  the  text. 


298  OF    THE    RELATIONS   BETWEEN  §173 

interested,  the  limits  "being  fixed  for  the  punishment  by  com 
mon  usage  or  law. 

It  is  to  be  observed,  that  the  rules  concerning  contraband 
relate  to  neutrals  exporting  such  articles  to  a  country  at  war. 
There  is  nothing  unlawful,  when  merchant  vessels  of  either  of 
the  belligerents  supply  themselves  in  a  neutral  mart  with 
articles  having  the  quality  of  contraband.  Here,  again,  the 
neutral  is  passive,  and  leaves  the  law  of  nations  to  be  executed 
by  others,  who  would  make  all  the  property,  if  captured,  prize 
of  war.* 

*  Comp.  §  162.  A  formal  way  of  stating  the  relations  of  a  neutral  country  to 
contraband  trade,  taken  by  some  textwriters,  is  found  in  the  proposition,  that  such 
a  transaction  cannot  occur  on  neutral  territory,  that  is,  that  it  begins,  when  the 
articles,  called  contraband,  are  brought  upon  the  high  sea,  or  within  the  enemy's 
limits  on  the  land.  All  admit  that  when  the  act  of  exportation  from  the  neutral 
territory  begins,  an  act  of  violation  of  neutrality  on  the  part  of  some  one  commences. 
The  question  may  still  be  asked  whether  the  government  of  the  neutral  is  not  bound 
to  interfere,  when  it  has  evidence  that  its  subjects  are  thus  aiding  a  belligerent 
against  a  friend,  and  is  not  bound  also  to  acquaint  itself  with  such  evil  intentions. 
In  the  present  state  of  the  law  of  nations  this  is  not  felt  to  be  obligatory,  although 
such  trade  is  immoral,  and  tends  to  produce  lasting  national  animosities.  A  juster 
and  humaner  policy  would  make  all  innocent  trade  with  the  enemy  free,  and  require 
a  neutral  to  pass  stringent  and  effectual  laws  against  contraband  trade.  Phillimore 
(III.  §§  230-233)  denies  that  such  articles  can  even  be  lawfully  sold  to  the  belliger 
ent,  within  the  territory  of  the  neutral.  "  If  it  be  the  true  character  of  a  neutral," 
s*ays  he,  "  to  abstain  from  every  act  which  may  better  or  worsen  the  condition  of  a 
belligerent,  the  unlawfulness  of  any  such  sale  is  a  necessary  conclusion  from  these 
premises.  For  what  does  it  matter  where  the  neutral  supplies  one  belligerent  with 
the  means  of  attacking  another  ?  How  does  the  question  of  locality,  according  to 
the  principles  of  eternal  justice  and  the  reason  of  the  thing,  affect  the  advantage  to 
one  belligerent  or  the  injury  to  the  other  accruing  from  this  act  of  the  alleged  neu 
tral  ?  "  He  goes  on  to  say  with  justice  that  foreign  enlistments  stand  on  the  same 
ground  with  the  sale  of  munitions  of  war.  If  they  are  prohibited  and  made  penal, 
as  they  are  extensively,  why  should  not  these  be  so  also  ?  And  he  regrets  that 
Judge  Story  should  have  said  (case  of  the  Santissima  Trinidad,  7  Wheaton,  340), 
"  there  is  nothing  in  our  laws  or  in  the  law  of  nations  that  forbids  our  citizens  from 
sending  armed  vessels  as  well  as  munitions  of  war  to  foreign  ports  for  sale.  It  is  a 
commercial  adventure  which  no  nation  is  bound  to  prohibit ;  and  which  only  exposes 
the  persons  engaged  in  it  to  the  penalty  of  confiscation."  I  too  regret  that  Story 
should  have  to  say  this,  if  it  be  true.  The  same  fact  prevails  everywhere  as  to 
munitions  of  war.  But  as  to  armed  vessels  of  war  and  even  vessels  made  ready  for 
an  armament,  are  they  not  too  decisively  the  beginning  of  a  hostile  expedition  to  be 
allowed  by  any  nations  that  prohibit  such  expeditions  from  issuing  out  of  their 
territories  ? 


§  179  BELLIGERENTS   AND   NEUTRALS.  299 

§179. 

It  is  admitted,  that  the  act  of  carrying  to  the  enemy  articles 
directly  useful  in  war  is  wrong,  for  which  the  in-  what  gooda  are 
jured  party  may  punish  the  neutral  taken  in  the  contraband 
act.  When,  however,  we  ask  what  articles  are  contraband,  the 
answer  is  variously  given.  Great  maritime  powers,  when  en 
gaged  in  war,  have  enlarged  the  list,  and  nations  generally  neu 
tral  have  contracted  it.  Treaties  defining  what  is  contraband 
have  differed  greatly  in  their  specifications ;  the  same  nation 
in  its  conventions  with  different  powers  at  the  same  era,  has 
sometimes  placed  an  article  in  the  category  of  contraband,  and 
sometimes  taken  it  out.  "Writers  on  the  law  of  nations,  again, 
are  far  from  uniformity  in  their  opinions.  To  make  the  subject 
more  clear,  it  is  necessary  to  enter  into  a  consideration  of  dif 
ferent  classes  of  articles. 

1.  Articles  by  general  consent  deemed  to  be  contraband, 
are  such  as  appertain  immediately  to  the  uses  of  in  the  ugage  of  na_ 
war.  Such  are,  in  the  words  of  a  treaty  of  the  tlons? 
year  1800,  between  England  and  Russia,  cited  by  Mr.  Man 
ning,  "  cannons,  mortars,  fire-arms,  pistols,  bombs,  grenades, 
bullets,  balls,  muskets,  flints,  matches,  powder,  saltpetre,  sul 
phur,  cuirasses,  pikes,  swords,  belts,  cartouch-boxes,  saddles, 
and  bridles,  beyond  the  quantity  necessary  for  the  use  of  the 
ship."  In  the  instructions  of  the  French  government  to  the 
officers  of  the  navy  in  the  Crimean  war,  given  in  March  1854, 
the  articles  enumerated  are  "bouches  et  armes  a  feu,  armes 
blanches,  projectiles,  poudre,  salpetre,  soufre,  objets  d'equip- 
ment,  de  campement  et  de  harnachement  militaires,  et  tous  in 
struments  quelconques  fabriques  a  Pusage  de  la  guerre."  The 
following  enumeration  recurs  in  several  treaties  between  the 
United  States  and  Spanish  American  Eepublics:  "1.  Can 
nons,  mortars,  howitzers,  swivels,  blunderbusses,  muskets,  fu 
sees,  rifles,  carbines,  pistols,  pikes,  swords,  sabres,  lances,  spears, 

The  views  of  Phillimore,  although  be  may  confound  the  duty  of  a  neutral  state 
and  that  of  a  citizen  of  such  a  state,  do  him  great  honor.  If  contraband  trade  in 
any  article  can  be  prevented  within  the  borders  of  the  neutral,  he  is  bound,  in  right 
reason,  but  not  by  the  present  law  of  nations,  to  prevent  it. 


300  OF   THE    RELATIONS    BETWEEN  §  179 

halberts,  hand-grenades,  bombs,  powder,  matches,  balls,  and  all 
other  things  belonging  to  the  use  of  these  arms.  2.  Bucklers, 
helmets,  breastplates,  coats  of  mail,  infantry  belts,  and  clothes 
made  up  in  a  military  form  and  for  a  military  use.  3.  Cavalry 
belts,  and  horses  with  their  furniture.  4th,  and  generally,  all 
kinds  of  arms  and  instruments  of  iron,  steel,  brass,  and  copper, 
or  of  any  other  material,  manufactured,  prepared,  and  formed 
expressly  to  make  war  by  sea  or  land."  * 

2.  Horses  have  been  mentioned  as  being  contraband  in  very 
many  treaties  extending  down  into  this  century.     "All  the 
principal   powers   have    so  looked  upon   them    at   different 
times,"  says 'Mr.  Manning,  "with  the  exception  of  Russia." 

3.  In  a  few  treaties  belonging  to  the  seventeenth  century 
unwrought  metals   and  money  have  been  so  regarded.      In 
others,  money  is  expressly  excepted,  as  in  that  of  Utrecht,  in 
1713 ;  that  of  England  with  France,  in  1786 ;  and  that  between 
Spain  and  the  United  States,  in  1795. 

4.  Naval  stores  and  materials  for  ship-building  have  been 
declared  to   be    contraband   in  many  treaties,  and  in  some 
others   have   been    excepted  from  the  list.      The   treaty  of 
1794,  between  Great  Britain    and  the  United  States,  after 
declaring  several  kinds  of  naval  stores  to  be  contraband,  adds 
that  "  generally,  whatever  may  serve  directly  to  the  equipment 
of  vessels,  unwrought  iron  and  fir-planks  only  excepted,"  shall 
partake  of  this  quality.  Chancellor  Kent  says,  that  the  govern 
ment  of  the  United  States  has  frequently  conceded  that  materi 
als  for  the  building,  equipment,  and  armament  of  ships  of  war, 
as  timber  and  naval  stores,  are  contraband.     (I.  137.)     The 
English  prize  courts,  in  the  case  of  such  articles,  and  of  pro 
visions,  have  bean  led  to  adopt  a  set  of  rules  of  which  we  shall 
speak  a  little  below,  f 

*  As  in  the  treaty  with  Colombia,  Oct.  3,  1824,  with  Venezuela,  Jim.  20,  1836, 
with  Guatemala,  March  3,  1849,  with  New  Granada,  June  10,  1848,  San  Salvador, 
Jan.  2,  1850,  with  Mexico,  April  5,  1851.  In  the  two  last  a  fifth  clause  makes 
contraband  "  provisions  that  are  sent  into  a  besieged  or  blockaded  place." 

f  Ships  ready  made  and  capable  of  use  for  purposes  of  war,  have  not  occupied 
the  attention  of  treaty-making  powers.  Hiibner  declares  them  contraband,  geffter 
is  of  the  same  judgment.  (§  157,6.)  Phillimore  says  "that  the  sale  of  a  ship  for 


§  179  BELLIGERENTS   AND    NEUTRALS.  301 

5.  Provisions  are  not  in  themselves  contraband,  but,  accord 
ing  to  a  number  of  text- writers,  as  Grotius,  Yattel,  and  several 
modern,  especially  English  authorities,  may  become  so,  where 
there  is  a  prospect  of  reducing  the  enemy  by  famine.  The 
usage  in  regard  to  them  has  been  shifting.  Queen  Elizabeth's 
government  forbade  the  Poles  and  Danes  to  convey  provisions 
to  Spain,  on  the  ground,  that  by  the  rights  of  war  an  enemy 
might  be  reduced  by  famine.  The  conventions,  which,  at 
various  times  in  the  17th  and  18th  centuries,  declared  that 
they  were  not  contraband,  show  at  least  a  fear  that  belligerent 
nations  would  treat  them  as  such.  At  the  outburst  of  the  war 
succeeding  the  French  revolution,  when  France  was  almost  in 
a  state  of  famine,  conventions  were  made  between  Great 
Britain  on  the  one  hand,  and  Russia,  Spain,  Portugal,  Prussia, 
and  Austria,  on  the  other,  which  restricted  the  conveyance 
from  their  respective  ports  into  France,  of  naval  and  military 
stores,  and  of  provisions, — whether  cereal  grains,  salt-fish,  or 
other  articles.  The  French  convention,  also,  in  the  same  year, 
1793,  in  which  these  treaties  were  made,  declared  that  cargoes 
of  neutral  ships,  consisting  of  grain,  and  destined  for  a  hostile 
port,  might  be  seized  for  the  use  of  France,  on  the  principle  of 
preemption,  of  which  we  shall  presently  speak.  These  meas 
ures,  in  regard  to  provisions  especially,  were  earnestly  resisted 
by  Denmark  and  the  United  States,  which  were  then  the  lead 
ing  neutral  powers.  The  treaty  of  1794,  between  England 
and  the  United  States,  contains  an  admission  that  provisions 
and  other  articles,  not  generally  contraband,  might  become 

purposes  of  war  is  the  sale  of  the  most  noxious  article  of  war.  The  sale  by  a  neu 
tral  of  any  ship  to  a  belligerent  is  a  very  suspicious  act  in  the  opinion  of  the  English 
and  North  American  prize  courts,  and  one  which  the  French  prize  courts  refuse  to 
recognize."  And  he  goes  on  to  cite  a  case  in  which  a  ship  adapted  to  purposes  of 
war  was  sent  with  goods  on  board  to  a  belligerent  port  under  instructions  to  have 
her  sold  if  possible,  and  was  condemned.  (III.  p.  360.)  Hautefeuille,  on  the  other 
hand,  says  that  he  cannot  understand  how  a  mere  vessel,  as  yet  unarmed,  whatever 
may  be  its  destination,  is  an  article  of  contraband.  (II.  145.)  "  It  is  nothing  but  a 
vehicle."  And  so  sulphur  and  saltpetre  are  nothing  but  commodities ;  they  are 
incapable  as  yet  of  a  military  use.  Our  authorities  would  no  doubt  regard  sucl 
vessels  as  contraband.  (Story,  in  7  Wheaton,  340.) 


302  OF    THE    RELATIONS    BETWEEN  §180 

such  according  to  the  existing  law  of  nations,  and  proceeds  to 
prescribe  that  if  seized  they  shall  be  paid  for,  or,  in  other 
words,  allows,  as  between  the  contracting  parties,  of  the  prac 
tice  of  preemption. 

§180. 

In  view  of  these  historical  statements,  showing  the  vary- 
Resuits  for  deter-  ing  practice  of  nations  in  regard  to  certain  articles, 

mining  what  arti-  rnav  er>v 

cles    are     contra-    we  maj   bdj 

1.  That  nothing  can  justly  be  regarded  as  con 
traband,  unless  so  regarded  by  the  law  of  nations,  or  by  ex 
press  convention  between  certain  parties.  The  definition  of 
contraband  must  be  clear  and  positive.  For  as  belligerents  are 
authorized  to  inflict  severe  evils  on  neutrals  trading  in  contra 
band  articles,  it  is  plain  that  they  alone  cannot  define  in  what 
contraband  consists.  The  heavy  penalty  implies  a  heavy 
crime  understood  to  be  such,  when  the  penalty  was  allowed. 
There  must  be  certain  kinds  of  articles,  such  as  aiford  direct 
assistance,  not  to  the  enemy  ^  ~but  to  the  enemy' 's  military  opera 
tions,  and  ~known  "beforehand^  and  hence  implying  a  departure 
from  the  spirit  and  rules  of  neutrality,  which  can  be  seized  and 
confiscated.  Or,  since  the  articles  of  direct  use  in  war  may 
change  from  age  to  age,  at  the  most,  new  articles, — as  for  in 
stance  in  these  days  of  war-steamers,  steam-engines,  coals,  and 
the  like, — can  justly  come  into  this  list,  only  when  there  is 
satisfactory  proof  that  they  are  for  the  direct  uses  of  war.  And 
this,  of  course,  only  where  treaty  has  not  specified  certain  de 
finite  articles,  and  such  alone. 

2.  The  doctrine  of  occasional  contraband  or  contraband 
occasional  contra-  according  to  circumstances,  is  not  sufficiently 
established  to  be  regarded  as  a  part  of  the  law  of 
nations.  Naval  stores  and  provisions  are  the  articles  which 
come  here  under  our  notice  :  now  as  these  may  form  the  prin 
cipal  exports  of  a  nation,  it  is  plain  that  by  this  rule  the  neu 
tral's  trade  may  be  quite  destroyed.  The  rule  would  thus  be 
excessively  harsh,  if  the  usual  penalty  hanging  over  contraband 
were  inflicted.  To  mitigate  this  severity  and  in  a  certain  sense 


§  181  BELLIGERENTS    AND    NEUTRALS.  303 

to  pacify  neutrals,  the  British  prize  judges,  especially  Sir 
William  Scott,  adopted  certain  discriminating  rules,  according 
to  which  the  articles  in  question  partook  more  or  less  of  the 
contraband  character.  Thus,  if  the  produce  of  the  country 
from  which  they  had  been  exported,  or  in  an  unmanufactured 
state,  or  destined  to  a  commercial  port,  they  were  viewed  with 
greater  indulgence  than  if  shipped  from  a  country  where  they 
were  not  grown,  or  in  a  manufactured  state,  or  destined  to  a 
naval  station.  Sir  William  Scott  afterwards  withdrew  his 
indulgence  from  naval  stores  destined  to  a  commercial  port,  on 
the  ground  that  they  could  be  used  there  to  equip  privateers, 
or  be  transported  to  a  port  of  naval  equipment.*  And  in 
some  cases  a  yet  milder  rule  wras  adopted  by  Great  Britain  — 
that  of  preemption,  of  which  we  shall  speak  by  itself. 

§181. 

In  regard,  now,  to  this  doctrine  of  occasional  contraband,  we 
,  that  it  is  unjust  to  neutrals.     If  it  be  is  n    just,  and 


doubtful  whether  an  article  pertains  to  the  class 


of  contraband  or  not,  the  penalty  attached  to  this  class  of 
articles  ought  certainly  not  to  be  levied  upon  it.  It  is  either 
contraband  or  not,  and  is  not  so,  if  there  is  a  doubt  to  what 
class  it  belongs.  To  visit  it  with  a  half-penalty,  because  it  is 
of  doubtful  character,  is  like  punishing  on  a  lower  scale  a 
crime  half  proven. 

Secondly.  Does  usage  sanction  occasional  contraband  ?  So 
far  as  I  can  see,  the  most  that  can  be  said  is,  that  belligerents 
have  sometimes  put  doubtful  articles  into  the  list  of  contraband, 
and  neutrals  have  sometimes  submitted  to  it  ;  but  that  no  clear 
practice  appears  to  have  prevailed. 

Thirdly.  The  authority  of  the  older  text-  writers  is  more  in 
favor  of  such  a  distinction.  In  an  often-cited  passage  of  Gro- 
tius  (III.  1,  §  5),  after  dividing  things  in  the  hands  of  those  who 
are  not  enemies,  into  such  as  have  a  use  in  war  alone,  such  as 
have  no  use  in  war,  and  such  as  have  a  use  in  war  and  aside 
from  war,  he  says  that  in  regard  to  this  third  class  of  articles 

*  Comp.  Wheaton,  El.  IV.  3,  §  24,  p.  519. 


304:  OF    THE    RELATIONS    BETWEEN  §  181 

ancipitis  usus /  "si  tueri  me  non  possum,  nisi  quse  mittuntur 
intercipiam,  necessitas,  ut  alibi  exposuimus,  jus  dabit,  sed  sub 
onere  restitutionis,  nisi  causa  alia  accedat."  His  commentator, 
Samuel  de  Cocceii,  on  this  passage  observes,  that  "  necessity 
gives  no  right  over  the  goods  of  another,  so  that  if  mj  enemy 
is  not  aided  by  such  articles,  I  cannot  intercept  them,  although 
I  may  be  in  want  of  them.  On  the  other  hand,  if  the  power 
of  the  enemy  is  thereby  increased,  I  can  take  them,  albeit  I 
may  not  need  them  myself."  *  Bynkershoek,  although  he 
differs  from  Grotius  as  to  the  rule  of  necessity,  and  regards  a 
commerce  in  the  raw  materials  of  war  as  not  illicit,  yet  thinks 
they  may  be  prohibited,  if  the  enemy  cannot  well  carry  on  war 
without  them.  (Qusest.  J.  P.  I.  10.)  And  Yattel  decides  that 
even  provisions  are  contraband  in  certain  junctures,  when  we 
have  hopes  of  reducing  an  enemy  by  famine. 

Modern  English  writers  and  Chancellor  Kent  give  their 
in  re-  sanction  to  the  doctrine  of  occasional  contraband, 
while  "Wheaton,  without  expressing  a  positive 
opinion,  seems  averse  to  it.  Several  continental  authors  of 
repute  either  deny  it  to  be  a  part  of  the  law  of  nations,  or 
admit  it  with  cautious  reserve.  Heffter  says  (§  160),  "  never 
have  belligerents  been  allowed,  alone  and  according  to  their 
good  pleasure,  to  make  restrictions  of  this  kind,  although  when 
possessed  of  power  enough,  they  have  assumed  to  do  this." 
And  he  adds  in  regard  to  doubtful  articles,  that  belligerents 
can  take  measures  against  neutrals  exporting  them,  only  when 
a  destination  for  the  enemy's  government  and  military  forces 
can  be  ascribed  to  them  on  sufficient  grounds.  Ortolan  (II. 
179)  denies  that  provisions  and  objects  of  prime  necessity  can 
ever  be  considered  contraband,  but  concedes  that  a  belligerent 
may  declare  objects  to  be  contraband  which  are  not  usually 
such,  when  they  become  what  he  calls  contraband  in  disguise, 
as  the  parts  of  military  machines  conveyed  separately,  and 
ready  to  be  put  together.  His  countryman,  Hautefeuille  (Droits 
des  nations  neutres,  II.  419  f),  maintains  that  no  products  of  use 
in  peace  and  war  both  can  in  any  case  be  contraband,  c%  and 
*  Lausanne  ed.  of  Grotius,  voL  HI.,  p.  602.  f  1st  ed.  Comp.  II.  157  2d  ed. 


§182  BELLIGERENTS    AND    NEUTRALS.  305 

that  nothing  else  is  contraband  but  arms  and  munitions  of  war 
actually  manufactured,  proper,  immediately,  and  without  any 
preparation  or  transformation  by  human  industry,  to  be  em 
ployed  in  the  uses  of  war,  and  not  capable  of  receiving  any 
other  destination."  Kliiber,  after  saying  (§  288)  that  naval 
stores  and  materials  are  not  to  be  reckoned  contraband,  adds, 
that  in  case  of  doubt  as  to  the  quality  of  particular  articles, 
the  juristic  presumption  inclines  to  the  side  of  natural  right, 
which  allows  the  natural  freedom  of  trade.  De  Martens  says 
(§  318),  that  "  where  no  treaties  intervened,  the  powers  of  Eu 
rope,  when  they  were  neuter,  maintained  long  before  1780  [the 
date  of  the  first  armed  neutrality],  that  only  articles  of  direct 
use  in  war  could  be  considered  and  treated  as  contrabands  by 
belligerents."  The  United  States,  it  is  believed,  has  steadily 
taken  this  ground  in  regard  to  provisions,  although  not  in 
regard  to  naval  stores. 

The  doctrine  of  occasional  contraband  received  its  widest 
extension  in  the  war  of  England  against  revolutionary  France. 
The  British  representative  to  our  government  claimed  in  1Y93 
and  1Y94,  that  by  the  law  of  nations  all  provisions  were  to  be 
considered  as  contraband,  in  the  case  where  the  depriving  the 
enemy  of  these  supplies  was  one  of  the  means  employed  to 
reduce  him  to  reasonable  terms  of  peace,  and  that  the  actual 
situation  of  France  was  such  as  to  lead  to  that  mode  of  djstress- 
ing  her,  inasmuch  as  she  had  armed  almost  the  whole  laboring 
class  of  the  people  for  the  purpose  of  commencing  and  support 
ing  hostilities  against  all  the  governments  of  Europe.*  If  a 
government  had  armed  nearly  its  whole  laboring  population, 
the  laws  of  political  economy  would  probably  reduce  it  to 
weakness  far  sooner  than  the  cruisers  of  its  enemy  would  have 
that  effect. 

§  182. 

3.  The  harshness  of  the  doctrine  of  occasional  contraband 
brought  into  favor  the  rule  of  preemption,  which 
was  a  sort  of  compromise  f  between  the  belliger- 

*  Kent,  I.  137,  Lect.  YII. 

f  So  Sir  W.  Scott  calls  it  in  Robinson's  Rep.  I.  241, 
20 


306  OF    THE    RELATIONS    BETWEEN  §  182 

ents  (if  masters  of  the  sea)  and  the  neutrals.  The  former 
claimed  that  such  articles  may  be  confiscated,  the  latter  that 
they  should  go  free.  Now  as  the  belligerent  often  wanted 
these  articles,  and  at  least  could  hurt  his  enemy  by  forestalling 
them,  it  came  nearest  to  suiting  both  parties,  if,  when  they 
were  intercepted  on  the  ocean,  the  neutral  was  compensated 
by  the  payment  of  the  market  price,  and  of  a  fair  profit. 

This  rule,  which  was  more  especially  applied  by  the  English 
prize  courts  shortly  after  the  French  revolution,  would  be  a 
relaxation  of  the  severe  right  of  war,  if  the  doctrine  of  occa 
sional  contraband  could  be  established,  and  as  such,  a  conces 
sion  to  neutrals.  But  it  does  not,  as  an  independent  rule, 
possess  sufficient  support  from  usage  and  authority.  There  are 
two  sources  from  which  arguments  in  its  support  have  been 
derived.  (1.)  An  old  practice  of  European  governments  was 
to  seize  the  grain  or  other  necessary  articles  found  in  the  hands 
of  foreigners  in  their  ports,  on  promise  of  compensation,  which 
naturally  would  be  slow  in  coming.  Many  treaties  of  century 
XYII.  put  an  end  to  this  half-barbarous  exercise  of  sovereign 
ty  between  the  contracting  powers,  and  it  is  believed  to  be 
unknown  to  the  law  of  nations,  unless  (27)  under  the  form  of  a 
rule  of  necessity.  Such  a  rule  in  a  broad  sense  would  authorize, 
whether  in  war  or  peace,  the  taking  of  property  from  subjects 
or  foreigners,  if  self-preservation  required  it.  A  more  limited 
necessity  is  contemplated  in  the  passage  of  Grotius  already 
cited,  as  pertaining  to  a  belligerent,  and  justifying  him  in  de 
taining  the  goods  of  those  who  are  not  enemies,  if  otherwise  he 
cannot  defend  himself.  Omitting  to  inquire  whether  nations 
have  any  such  right,  which  if  it  exist  can  arise  only  in  extreme 
cases,  we  need  only  say  that  modern  preemption  is  limited  in 
extent  to  cargoes  of  neutrals  bound  to  the  enemy's  ports,  and 
is  practised  to  distress  the  enemy,  not  to  relieve  an  imminent 
distress  of  one's  own.  "  I  have  never  understood,"  says  Sir 
William  Scott,  "  that  this  claim  [of  preemption]  goes  beyond 
the  case  of  cargoes  avowedly  bound  for  enemy's  ports,  or  sus 
pected  on  just  grounds,  to  have  a  concealed  destination  of  that 
kind." 


BELLIGERENTS    AND    NEUTRALS.  307 

The  English  practice  in  cases  of  preemption  is  to  pay  a 
reasonable  indemnification,  and  a  fair  profit  on  English  practice 
the  commodity  intercepted,  but  not  to  pay  the  "*•**»** 
price  which  could  be  obtained  in  the  enemy's  ports.  In  a 
treaty  with  Sweden  of  1803,  it  was  arranged,  that  in  seizures 
of  this  kind  the  price  of  the  merchandise  should  be  paid,  either 
as  valued  in  Great  Britain  or  in  Sweden  at  the  option  of  the 
proprietor,  with  a  profit  often  per  cent.,  and  an  indemnity  for 
freight  and  expenses  of  detention.  In  the  treaty  of  1794, 
already  referred  to,  between  Great  Britain  and  the  United 
States,  it  is  said,  "  that  whereas  the  difficulty  of  agreeing  on 
the  precise  cases,  in  which  provisions  and  other  articles  of  con 
traband  may  be  regarded  as  such,  renders  it  expedient  to 
provide  against  the  inconveniences  and  misunderstandings 
which  might  thence  arise,  .  .  .  whenever  any  such  articles  so 
becoming  contraband  according  to  the  existing  law  of  nations, 
shall  for  that  reason  be  seized,  .  .  .  the  captors,  or  in  their  de 
fault,  the  government,  under  whose  authority  they  act,  shall 
pay  the  full  value  .  .  .  with  a  reasonable  mercantile  profit 
thereon,  together  with  the  freight  and  also  the  damages  inci 
dent  to  such  detention."  The  expression  "  becoming  contra 
band  according  to  the  existing  law  of  nations,"  left  the  ques 
tion,  What  the  law  of  nations  decided,  an  open  one :"  if  the 
United  States,  for  instance,  denied  that  certain  articles  seized 
as  contraband  were  legally  such,  they  .could  not  yield  their 
opinion,  and  preemption  itself  in  such  cases  might  be  a  cause 
of  complaint  and  even  of  war.  This  was  an  unfortunate  half 
way  adniission,  which  left  everything  unsettled,  and  yet  justi 
fied  the  other  party  to  the  convention  in  their  measures  of 
detention  on  the  seas. 

'§  183. 

If  the   contraband   articles   are   clearly  intended   for   the 
enemy's  use,  especially  if  they  are  more  in  quan-  Pcna]ty  for  con- 
tity  than  the  ship's  company  need,  they  are  sub-  trabandtr£ 
ject  to  confiscation  on  being  captured,  and  no  freight  is  paid 
for  them  to  the  transporter.*    Ancient  French  ordinances,  be- 

*  The  words  "  for  the  enemy's  use  "  are  not  sufficiently  precise,  as  they  might 


308  OF    THE    RELATIONS    BETWEEN  §  183 

fore  the  ordinance  of  1681,  prescribed  a  much  milder  course : 
the  value  of  the  contraband  articles,  at  the  estimate  of  the  ad 
miral  or  his  lieutenant,  was  to  be  paid  after  bringing  the  ship 
so  freighted  into  port.  Ancient  usage,  in  general,  made  the 
ship  also  liable  to  confiscation:  the  commercial  treaty  of 
Utrecht,  in  1713,  points  at  this  where  it  says,  that  "  the  ship 
itself,  as  well  as  the  other  goods  found  therein,  are  to  be  esteem 
ed  free,  neither  may  they  be  detained  on  pretence  of  their  be 
ing,  as  it  were,  infected  by  the  prohibited  goods,  much  less  shall 
they  be  confiscated  as  lawful  prize."  The  modern  rule,  pretty 
uniformly  acknowledged,  seems  to  be,  that  the  ship  and  goods 
not  contraband  go  free,  except  where  one  or  both  pertain  to 
the  owner  of  the  contraband  articles,  or  where  false  papers 
show  a  privity  in  carrying  them.*  The  justice  of  confiscating 
the  ship  in  both  these  cases  is  plain  enough,  for  there  is  an  evi 
dent  intention  of  violating,  by  means  of  the  vessel,  the  duties 
of  neutrals.  "Whether,  when  the  rest  of  the  cargo  belongs  to 
the  same  owner,  it  should  be  thus  severely  dealt  with,  may  be 
fairly  doubted.  Bynkershoek  (Qusest.  J.  P.  I.  12)  decided  in 
favor  of  confiscation,  "  ob  continentiam  delicti ; "  and  Sir  Wil 
liam  Scott  gives  as  his  reason  for  a  similar  opinion,  "  that  where 
a  man  is  concerned  in  an  illegal  transaction,  the  whole  of  his 
property  involved  in  that  transaction  is  liable  to  confiscation." 
The  penalty  ceases,  after  the  voyage  with  the  objectionable 
goods  on  board  is  performed. 

In  two  other  cases  the  confiscation  of  the  ship  has  some 
times  been  enforced, — when  the  contraband  goods  make  up 
three  quarters  of  the  value  of  the  cargo,  and  when  the  owner 
of  the  vessel  is  bound,  by  special  treaties  of  his  government 
with  that  of  the  captor,  to  abstain  from  a  traffic  of  this  descrip 
tion.  The  first  resolves  itself  into  a  rule  of  evidence  in  regard 
to  the  complicity  of  the  ship,  and  need  not  be  made  a  distinct 

include  articles  sent  from  one  neutral  port  to  another,  but  clearly  intended  to  be 
reshipped  from  thence  to  a  belligerent  place.  Even  this  indirect  trade  in  munitions 
of  war  some  would  regard  as  contraband  trade,  but  not,  re  apprehend,  on  good 
grounds. 

*  Of  course  where  the  ship  is  fitted  for  the  naval  warfare  of  the  enemy,  it  is  liable 
to  confiscation  on  another  ground. 


§184  BELLfGERENTS    AND    NEUTRALS.  309 

case ;  the  other  assumes,  without  reason,  that  the  owner  of  the 
vessel  must  have  a  knowledge  of  the  cargo,  and  is  not  gener 
ally  acknowledged. 

Among  treaties  modifying  the  penalty  in  cases  of  contra 
band,  that  between  the  United  States  and  Prussia,  Treaty  modifying 
which  Franklin  negotiated  in  178 5  (comp.  §  122),  «"  penalty. 
and  the  article  of  which  relating  to  this  subject  was  inserted  in 
the  new  treaty  of  1799,  deserves  especial  mention.  It  is  there 
provided,  with  regard  to  military  stores,  that  the  vessels  having 
them  on  board  may  be  detained  "  for  such  length  of  time  as 
the  captors  may  think  necessary  to  prevent  the  inconvenience 
or  damage  that  might  ensue  from  their  proceeding,  paying, 
however,  a  reasonable  compensation  for  the  loss  such  arrest 
shall  occasion  to  the  proprietors ;  and  it  shall  further  be  allow 
ed  to  use  in  the  service  of  the  captors  the  whole,  or  any  part 
of  the  military  stores  so  detained,  paying  the  owners  the  fall 
value  of  the  same,  to  be  ascertained  by  the  current  price  at  the 
place  of  its  destination.  But  in  a  case  supposed  of  a  vessel 
stopped  for  articles  of  contraband,  if  the  master  of  the  vessel 
stopped  will  deliver  out  the  goods  supposed  to  be  of  a  contra 
band  nature,  he  shall  be  admitted  to  do  it,  and  the  vessel  shall 
not  in  that  case  be  carried  into  any  port,  nor  further  detained, 
but  shall  be  allowed  to  proceed  on  her  voyage." 


§184. 

If  the  obligations  of  neutrality  forbid  the  conveyance  of 
contraband  goods  to  the  enemy,  they  also  forbid  Neutral  convey. 
the  neutral  to  convey  to  him  ships,  whether  of  war  £oC0ep8of  andemde- 
or  of  transport,  with  their  crews,  and  still  more  to  BPatches- 
forward  his  troops  and  his  despatches.  These  have  sometimes 
been  called  contraband  articles,  which  name  a  treaty  of  Eng 
land  with  Sweden  in  1691  expressly  gives  to  soldiers  together 
with  horses  and  ships  of  war  and  of  convoy.*  They  have^been 
called,  again,  "  contraband  par  accident."  But  in  truth,  as  Heif- 
ter  remarks,  they  are  something  more  than  contraband,  as  con 
necting  the  neutral  more  closely  with  the  enemy.  A  contra- 

*  Marquardsen,  der  Trent-Fall,  p.  61. 


310  OF    THE    RELATIONS    BETWEEN  §  134 

band  trade  maybe  only  a  continuation  of  one  which  was  legiti 
mate  in  peace,  but  it  will  rarely  happen  that  a  neutral  under 
takes  in  time  of  peace  to  send  troops  of  war  to  another  nation, 
and  the  carrying  of  hostile  despatches  implies  a  state  of  war. 
These  two  kinds  of  transport  deserve  a  more  extended  discussion. 

1.  The  conveyance  of  troops  for  a  belligerent  has  long  been 
regarded   as  highly  criminal.     In   the   commercial   treaty  of 
Utrecht  of  1713  (Dumont,  VIII.  I.  345),  between  France  and 
Great  Britain,  it  is  provided  that  the  liberty  granted  to  goods 
on  a  free  or  neutral  ship  "  shall  be  extended  to  persons  sailing 
on  the  same,  in  such  wise  that,  though  they  be  enemies  of  one 
or  both  the  parties,  they  shall  not  be  taken  from  the  free  ship, 
unless  they  be  military  persons,  actually  in  the  service  of  the 
enemy."     Many  modern  treaties  contain  the  same  exception 
from  the  protection  of  the  neutral  flag  and  in  nearly  the  same 
words ;  as  for  instance  those  of  1785  and  1800  between  France 
and  the  United  States,  and  those  of  the  latter  with  Guate 
mala,  San  Salvador,  and  Peru.*     Our  formula  of  exception  is 
"  unless  they  are  officers  or  soldiers,  and  in  the  actual  service 
of  the  enemy."     As  for  the  number  of  persons  of  this  sort,  so 
transported,  which  will  involve  a  vessel  in  guilt  and  lead  to  its 
condemnation,  it  may  perhaps  be  said  that  a  soldier  or  two, 
like  a  package  or  two  of  contraband  articles,  might  be  over 
looked  ;  but  it  is  held  that  to  forward  officers,  especially  of  high 
rank,  or  even  a  single  officer,  would  subject  the  neutral  vessel 
to   confiscation.     (The   Orozembo,   Robinson's  Eep.  VI.  434, 
Phillim.  III.  §  272.)  A  modern  case  shows  the  rigor  of  the  Eng 
lish  courts  in  regard  to  such  transportation.     The  Bremen  ship 
Greta  was  condemned  in  1855  during  the  Crimean  war,  by  a 
prize  court  at  Hong  Kong,  for  carrying  270  shipwrecked  Rus 
sian  officers  and  seamen  from  a  Japanese  to  a  Russian  harbor, 
— although  had  this  conduct  been  dictated  by  mere  humanity, 
condemnation  could  not  have  taken  place.f 

2.  No  rule  of  international  law,  forbidding  the  conveyance 
of  hostile  despatches,  can  be  produced,  of  an  earlier  date  than 

*  Marquardsen,  u.  s.  p.  61. 
f  Marquardsen,  u.  s.  p.  59. 


§184  BELLIGERENTS    AND    NEUTRALS.  311 

the  first  years  of  the  present  century.  Sir  William  Scott  (Lord 
S  to  well)  seems  to  have  struck  out  this  rule,  as  a  deduction,  and 
we  may  say,  as  a  fair  deduction  from  the  general  obligation  of 
neutrality.  The  general  doctrine  of  the  English  courts  is  this : 
Despatches  are  official  communications  of  official  persons  on 
the  public  affairs  of  government.  Letters  of  such  persons  con 
cerning  their  own  private  affairs,  and  letters  written  by  unoffi 
cial  persons  are  not  despatches.  Communications  from  a  hos 
tile  government  to  one  of  its  consuls  in  a  neutral  country,  un 
less  proved  to  be  of  a  hostile  nature,  and  despatches  of  an 
enemy's  ambassador  resident  in  a  neutral  country  are  excepted 
from  the  rule,  on  the  ground  that  they  relate  to  intercourse  be- 
tween  the  hostile  state  and  a  neutral,  which  is  lawful,  and  which 
the  other  belligerent  may  not  obstruct.  The  comparative  im 
portance  of  the  despatches,  if  within  the  rule,  is  immaterial. 

In  order  to  make  the  carrying  of  enemy's  despatches  an 
offence,  the  guilt  of  the  master  must  be  established.  If  the 
despatches  are  put  on  board  by  fraud  against  him,  no  penalty 
is  incurred  by  the  ship.  If  he  sails  from  a  hostile  port,  and 
especially  if  the  letters  are  addressed  to  persons  in  a  hostile 
country,  stronger  proof  is  needed  that  he  is  not  privy  to  a 
guilty  transaction  than  if  the  voyage  began  in  a  neutral  coun 
try,  and  was  to  end  at  a  neutral  or  open  port. 

If  the  shipmaster  is  found  guilty  of  conveying  hostile  de 
spatches,  the  ship  is  liable  to  condemnation,  and  the  cargo  is 
confiscable  also,  both  "  ob  continentiam  delicti,"  and  because 
the  agent  of  the  cargo  is  guilty.  But  if  the  master  is  not  such 
an  agent,  his  guilt  will  not  extend  beyond  the  vessel. 

This  rule,  in  its  general  form,  if  not  in  its  harsher  features, 
may  be  said  to  have  passed  into  the  law  of  nations.  Not  only 
the  declarations  of  England  and  France,  made  in  the  spring  of 
1854  (§  175,  note),  but  the  contemporaneous  ones  of  Sweden 
and  of  Prussia  sanction  it,  and  the  government  of  the  United 
States  in  one  instance  has  accepted  it  as  a  part  of  the  law  of 
nations.  It  is  received  as  such  by  text-writers  of  various  na 
tionalities,  by  Wildman  and  Phillimore,  by  Wheaton,  by 
Heffter,  Marquardsen,  and  other  German  writers,  by  Or- 


312  OF    THE    RELATIONS    BETWEEN  §  184 

tolan  and  Hautefeuille.  The  last  named  publicist  gives  a 
modification  of  the  rule,  which  though  of  private  authority, 
deserves  serious  attention.  Despatches  can  be  transported, 
says  he,  from  one  neutral  port  to  another,  from  a  neutral 
to  a  belligerent,  or  from  a  belligerent  to  a  neutral,  or  finally 
from  one  belligerent  port  to  another.  In  the  three  first  cases 
the  conveyance  is  always  innocent.  In  the  last  it  is  guilty  only 
when  the  vessel  is  chartered  for  the  purpose  of  carrying  the  de 
spatches  ;  but  when  the  master  of  a  packet  boat  or  a  chance  ves 
sel  takes  despatches  together  with  other  mail  matter  according 
to  usage,  he  is  doing  what  is  quite  innocent,  and  is  not  bound  to 
ascertain  the  character  of  the  letters  which  are  put  on  board 
his-  vessel.  Whatever  may  be  thought  of  this,  it  may  be  seri 
ously  doubted  whether  a  neutral  ship  conveying  mails  accord 
ing  to  usage  or  the  law  of  its  country  can  be  justly  treated  as 
guilty  for  so  doing.  The  analogy  from  articles  contraband  of 
war  here  loses  its  force.  When  a  war  breaks  out  a  captain 
ought  to  know  what  articles  he  has  on  board,  but  how  can  he 
know  the  contents  of  mailed  letters  ? 

The  case  of  the  Trent,  in  which  this  and  several  other  prin 
ciples  of  international  law  were  involved,  may  here  receive  a 
brief  notice.  This  vessel,  sailing  from  one  neutral  port  to  an 
other  on  its  usual  route  as  a  packet  ship,  was  overhauled  by  an 
American  captain,  and  four  persons  w^ere  extracted  from  it  on 
the  high  seas,  under  the  pretext  that  they  were  ambassadors, 
and  bearers  of  despatches  from  the  Confederate  government,  so 
called,  to  its  agents  in  Europe.  The  vessel  itself  was  allowed 
to  pursue  its  way,  by  wTaiver  of  right  as  the  officer  who  made 
the  detention  thought,  but  no  despatches  were  found.  On  this 
transaction  we  may  remark,  (1)  that  there  is  no  process  known 
to  international  law  by  which  a  nation  may  extract  from  a 
neutral  ship  on  the  high  sea  a  hostile  ambassador,  a  traitor  or 
any  criminal  whatsoever.  Nor  can  any  neutral  ship  be  brought 
in  for  adjudication  on  account  of  having  such  passengers  on 
board.  (2.)  If  there  had  been  hostile  despatches  found  on 
board,  the  ship  might  have  been  captured  and  taken  into  port ; 
and  when  it  had  entered  our  waters,  these  four  men,  being  cit- 


§  185  BELLIGERENTS   AND    NEUTRALS.  313 

izens  eharged  with  treason,  were  amenable  to  our  laws.  But 
there  appears  to  have  been  no  valid  pretext  for  seizing  the  ves 
sel.  It  is  simply  absurd  to  say  that  these  men  were  living  de 
spatches.  (3.)  The  character  of  the  vessel  as  a  packet  ship, 
conveying  mails  and  passengers  from  one  neutral  port  to  an 
other,  almost  precluded  the  possibility  of  guilt.  Even  if  hostile 
military  persons  had  been  found  on  board,  it  might  be  a  ques 
tion  whether  their  presence  would  involve  the  ship  in  guilt,  as 
they  were  going  from  a  neutral  country  and  to  a  neutral  coun 
try.  (4.)  It  ill  became  the  United  States, — a  nation  which  had 
ever  insisted  strenuously  upon  neutral  rights, — to  take  a  step 
more  like  the  former  British  practice  of  extracting  seamen  out 
of  neutral  vessels  upon  the  high  seas,  than  like  any  modern 
precedent  in  the  conduct  of  civilized  nations,  and  that  too  when 
she  had  protested  against  this  procedure  on  the  part  of  Great 
Britain  and  made  it  a  ground  of  war.  As  for  the  rest,  this 
affair  of  the  Trent  has  been  of  use  to  the  world,  by  committing 
Great  Britain  to  the  side  of  neutral  rights  upon  the  seas.* 

§185. 

Certain  kinds  of  trade,  as  the  coasting  and  colonial,  have 
been  by  the  policy  of  most  nations  confined  to  Trade  closed  in 

'-,  ,       .          .  n  ,  ,      peace,  but  opened 

national  vessels  in  time  ot  peace ;  and  neutrals  in  war. 
have  been  allowed  to  participate  in  them    only  when   war 
rendered  the  usual  mode  of  conveyance  unsafe.     It  would  ap 
pear,  that  to  make  such  trade  lawful,  licenses  were  granted  to 
particular  vessels,  and  the  belligerent  captor  could,  with  justice, 

*  For  the  subjects  embraced  within  this  section  see  Marquardsen  (prof,  at  Erlan- 
gen)  der  Trent-Fall,  Erlangen,  1862.— For  the  conveyance  of  troops  and  of  de 
spatches  most  of  the  modern  text-writers  may  be  consulted,  as  .Wheaton,  IV.  3,  §  25  ; 
Heffter,  §  157  6;  Ortolan,  II.  213 ;  Wildman,  II.  234-244  ;  Phillimore,  III.  §  273. 
The  cases,  which  have  principally  determined  the  law  in  the  matter  of  despatches, 
are  those  of  the  Atalanta,  6  Robinson's  Rep.  440,  Carolina,  ibid.  465,  and  Madison, 
Edwards'  Rep.  224.  The  Atalanta  brought  despatches  from  the  French  governor  of 
the  Isle  of  France  to  the  French  minister  of  marine,  and  was  condemned ;  the  Caro 
lina,  from  the  French  ambassador  in  the  United  States,  a  neutral  country,  to  his 
home  government,  and  was  released. — For  the  course  which  the  United  States  should 
have  taken  from  the  first  news  of  the  Trent  affair,  in  consistency  with  our  past 
principles,  comp.  Mr.  Sumner's  speech  in  the  Senate  of  the  United  States  in  Jan.  1862. 


314:  OF    THE    RELATIONS    BETWEEN  §186 

take  the  ground  that  the  vessel  under  license  had  idtntified 
itself  with  the  enemy.  In  the  seven  years'  war,  declared  in 
1756,  the  British  government  and  courts  maintained  that  this 
kind  of  trade  was  prohibited  by  the  law  of  nations :  hence  the 
principle,  that  a  neutral  could  not  lawfully  engage,  during 
war,  in  a  trade  with  the  enemy,  from  which  he  had  been  shut 
out  in  peace,  is  called  the  rule  of  1T56.  The  rule  was  protest 
ed  against  in  1780  by  the  first  armed  neutrality,  so  far  as  coast 
ing  trade  was  concerned ;  but  in  1793  and  onwards  was  enforced 
by  the  British  government ;  although,  now,  the  trade  was  no 
longer  carried  on  by  special  license,  but  was  opened  to  all  neu 
tral  vessels.  The  grounds  on  which  the  rule  stood  were,  that 
the  neutral  interfered  to  save  one  of  the  belligerents  from  the 
state  of  distress  to  which  the  arms  of  his  foe  had  reduced  him, 
and  thus  identified  himself  with  him.  The  neutral  states  have 
never  allowed  that  the  rule  forms  a  part  of  the  international 
code.  "Its  practical  importance,"  Dr.  Wheaton  observes, 
"  will  probably  hereafter  be  much  diminished  by  the  revolution 
which  has  taken  place  in  the  colonial  system  of  Europe.* 

§186. 

The  word  blockade  properly  denotes  obstructing  the  pas 
sage  into  or  from  a  place  on  either  element,  but  is 

Blockade.  /.  ,  f  . 

more  especially  applied  to  naval  forces  preventing 
communication  by  water.  With  blockades  by  land  or  ordi 
nary  sieges  neutrals  have  usually  little  to  do. 

A  blockade  is  not  confined  to  a  seaport,  but  may  have 
what  places  can  Q^QC^  on  a  roadstead  or  portion  of  a  coast,  or  the 

mouth  of  a  river.  But  if  the  river  is  a  pathway 
to  interior  neutral  territories,  the  passage  on  the  stream  of 
vessels  destined  for  neutral  soil  cannot  be  impeded.  It  has 
been  asserted,  that  no  place  could  be  put  under  blockade, 
unless  it  were  fortified ;  but  the  law  of  nations  knows  no  such 
limitation.f 

There  is  a  general  agreement  that  it  is  unlawful  for  a  neu- 

*  Wheaton,  El.  IV.  3,  §  27,  at  the  end. 

f  By  Lucchesi-Palli,  p.  180,  of  the  French  translation  of  the  Italian  work,  cited 
by  Ortolan,  II  299. 


§  186  BELLIGERENTS    AND    NEUTRALS.  315 

tral  vessel  knowingly  to  attempt  -to  break  a  block-  why  is  a  breach 

°  J    .  r  ,        of    blockade    un- 

ade,  whether  by  issuing  from  or  entering  the  lawful? 
blockaded  place.  Such  an  act,  especially  of  ingress,  tends  to 
aid  one  of  the  belligerents  in  the  most  direct  manner  against 
the  designs  of  the  other,  and  is  therefore  a  great  departure  from 
the  line  of  neutrality.  And  a  similar  act  on  land  would 
involve  the  loss  of  the  most  innocent  articles  intended  for  a 
besieged  town.  M.  Ortolan  places  the  obligation  to  respect  a 
blockade  on  the  ground  that  there  is  an  actual  substitution  of 
sovereigntyj  that  is,  that  one  belligerent  has  possession  by 
occupancy  of  the  waters  of  the  other.  But  this  is  a  formal 
way  of  defending  the  right  of  blockade,  and  may  be  found  fault 
with,  perhaps,  for  the  reason  that  sovereignty  over  water  along 
a  coast  is  merely  an  incident  to  sovereignty  on  the  adjoining 
land,  which  the  blockader  has  not  yet  acquired.  The  true 
ground  of  the  right  is  simply  this,  that  the  belligerent  has  a 
right  to  carry  on  a  siege ;  and  that  his  act  of  commencing  such 
a  siege  places  neutrals  under  an  obligation  not  to  interfere  with 
his  plans.  If  the  sea  were  a  common  pathway  to  the  very 
coast  this  right  would  still  subsist. 

Blockades  may  be  considered  in  regard  to  their  objective 
validity,  to  the  evidence  which  the  neutral  ought  to  have  of 
the  fact,  or  their  subjective  validity,  to  the  conduct  which 
constitutes  a  breach  of  blockade  and  its  penalties,  and  to  the 
history  of  attempts  to  stretch  the  notion  of  blockade  beyond 
the  limits  prescribed  by  international  law. 

A  valid  or  lawful  blockade  requires  the  actual  presence  of 
a  sufficient  force  of  the  enemy's  vessels  before  a  5  what  is  a  valid 
certain  place  on  the  coast.  By  presence  is  intend-  blockade ! 
ed  general  presence,  or  presence  so  far  as  the  elements  do  not 
interfere,  so  that  the  dispersion  for  a  time  of  the  blockading 
squadron  by  a  storm  is  not  held  to  amount  to  its  being  broken 
up.  For  this  there  must  be  abandonment  of  the  undertaking. 
What  a  sufficient  force  is,  cannot  be  determined  with  logical 
rigor.  It  may  be  said  to  be  such  a  force  as  will  involve  a 
vessel  attempting  to  pass  the  line  of  blockade  in  considerable 
danger  of  being  taken. 


316  OF    THE    RELATIONS   BETWEEN  §  187 

Treaties  have  sometimes  determined  the  amount  of  force 
necessary  to  make  a  blockade  valid.  Tims  a  treaty  of  1742*, 
between  France  and  Denmark^  declares  that  the  entry  of  a 
port,  to  be  blockaded,  must  be  closed  by  at  least  two  vessels, 
or  by  a  battery  of  cannons  placed  on  the  coast,  in  such  sort 
that  vessels  cannot  get  in  without  manifest  danger.  A  treaty 
of  1753,  between  Holland  and  the  two  Sicilies,  requires  the 
presence  of  at  least  six  vessels  of  war,  at  the  distance  of  a  little 
more  than  cannon-shot  from  the  place,  or  the  existence  of  bat 
teries  raised  on  the  coast,  such  that  entrance  cannot  be  effected 
without  passing  under  the  besieger's  guns.  A  treaty  of  1818, 
between  Russia  and  Denmark,  repeats  in  substance  the  provis 
ions  of  the  first  named  treaty. 

It  results  from  this,  that  all  paper  or  cabinet-blockades, 
paper  or  cabinet-  whether  declarations  of  an  intention  to  blockade 

blockades  unlaw-  ..  .  .  ,.  ..  „  .  .  , 

fui.  a  place  without  sending  an  adequate  force  thither, 

or  the  mere  formality  of  pronouncing  a  tract  of  coast  under 
blockade,  are  an  undue  stretch  of  belligerent  right,  and  of  no 
validity  whatever.  Such  grievous  offences  against  the  rights 
of  neutrals  have  come,  it  is  to  be  hoped,  to  a  perpetual  end, 
since  the  nations  which  offended  most  signally  in  this  respect 
were  parties  to  the  declaration  accompanying  the  peace  of 
Paris  (April  16,  1856),  that  "  blockades  in  order  to  be  binding 
must  be  effectual,  that  is  to  say,  maintained  by  a  force,  suffi 
cient  in  reality  to  prevent  access  to  the  coast  of  the  enemy." 

(§  WS.) 

§  187. 

As  a  blockade  arises  from  some  positive  act  and  not  from  a 
2.  Evidence  of    mere  intention,  as  it  is  a  temporary,  and,  it  may 

the  existence  of  a    ,  n  ,     _  _'*M 

blockade.  be,  an  often-repeated  measure,  and  as  a  neutral, 

is,  in  general,  innocent  in  endeavoring  to  enter  any  port  in  his 
friend's  territory,  it  is  manifest  that  in  order  to  become  guilty, 
he  must  have  had  the  means  of  obtaining  due  notice  of  the  new 
state  of  things  which  a  blockade  has  occasioned. 

The  best  notice  is,  when  a  vessel  approaching  a  port,  or 
what  is  due  attempting  to  enter  it,  is  warned  off  by  a  ship 
notfce?  pertaining  to  the  blockading  squadron.  In  many 


§  187  BELLIGERENTS   AND    NEUTRALS.  317 

special  treaties  this  is  required.  In  that  of  1794,  between 
Great  Britain  and  the  United  States,  it  is  provided,  that 
whereas  vessels  frequently  "  sail  for  a  port  or  place  belonging 
to  an  enemy  without  knowing  that  the  same  is  either  besieged, 
blockaded,  or  invested,  it  is  agreed  that  every  vessel  so  circum 
stanced  may  be  turned  away  from  such  port  or  place ;  but  she 
shall  not  be  detained,  nor  her  cargo,  if  not  contraband,  be  con 
fiscated,  unless,  after  notice,  she  shall  again  attempt  to  enter." 
Similar  stipulations  exist  in  treaties  between  France  and  the 
governments  of  Spanish  America.* 

Justice  to  neutrals  requires  that  their  ships  should  not  t>e 
subject  to  the  risk  and  delays  of  a  voyage  to  a  port,  where  they 
may  be  debarred  admission.  The  universal  practice,  is,  there 
fore,  to  communicate  the  news  of  a  blockade  to  neutral  govern 
ments,  upon  whom  lies  the  responsibility  of  making  it  known 
to  those  who  are  engaged  in  commerce.  And  if  such  notice 
be  given,  similar  notice  must  be  given  of  the  discontinuance 
of  a  blockade,  as  far  as  possible.  For  a  wrong  is  done  to  neu 
trals,  if  they  are  left  to  find  out  as  they  can  that  a  blockade  is 
terminated,  since  a  long  time  may  elapse  before  it  will  be  con 
sidered  safe  to  return  to  the  old  channel  of  commerce. 

There  is  a  difference  of  practice  in  regard  to  the  amount  of 
notification  which  neutrals  may  claim.  The  French  hold,  if 
we  mistake  not,  that  both  a  notice  from  the  government  of  the 
belligerent,  and  notice  from  a  blockading  vessel,  at  or  near  the 
port,  are  necessary,  so  that  a  vessel  will  not  incur  guilt  by 
coming  to  a  port  in  order  to  ascertain  whether  a  blockade, 
made  known  in  the  diplomatic  way,  is  still  kept  up.  The 
English  authorities  make  two  kinds  of  blockade,  one  a  block 
ade  de  facto,  which  begins  and  ends  with  the  fact,  and  which 
will  involve  no  vessel  attempting  to  enter  a  harbor  in  guilt, 
unless  previously  warned  off;  and  the  other  a  blockade,  by 
notification,  accompanied  by  the  fact.  In  the  latter  case, 
the  presumption  is  that  the  blockade  continues  until  notice  to 

*  Wheaton,  El.  IV.  3,  §  28,  p.  544 ;  Ortolan,  II.  305,  seq.— Treaties  of  France, 
with  Brazil  (1828),  Bolivia  (1834),  Texas  (1839),  Venezuela  (1843),  Equador  (1843), 
and  others  more  recent,  contain  such  provisions. 


318  OF    THE    KELATIONS    BETWEEN  §187 

the  contrary  is  given  by  the  blockading  government.  Hence 
ignorance  of  the  existence  of  the  blockade  cannot  ordinarily  be 
plead  as  an  excuse  for  visiting  the  blockaded  port,  but  the 
voyage  itself  is  evidence  of  an  intention  to  do  an  unlawful  act. 
This  seems  to  be  quite  reasonable  :  notice  to  the  neutral  state 
must  be  regarded  as  notice  to  all  shippers  who  are  its  subjects, 
and  if  the  rule  of  evidence  presses  hard  in  a  few  cases,  the 
blockading  government  is  not  in  fault.  But  the  notice  must 
be  given  to  all  neutral  powers  in  order  to  reach  their  subjects : 
general  notoriety,  as  by  news  travelling  from  one  country  to 
another,  is  not  sufficient  notice.* 

Equity  requires  that  the  neutral  should  have  had  time  to 
receive  notice  of  a  blockade.  Hence,  a  ship  from  a  distance, 
as  from  across  the  Atlantic,  may  attempt  to  enter  a  port 
actually  invested,  without  exposing  itself  to  penalties. 

It  cannot  be  said  in  justice,  that  a  shrewd  suspicion  ol  a 
blockade  is  enough  to  make  a  vessel  guilty  in  sailing  for  a 
certain  port,  for  a  known  or  a  knowable  fact  must  precede 
guilt.  On  the  other  hand,  a  fair  possibility  derived  from  the 
expectation  of  peace,  or  from  other  sources,  that  a  blockade  is 
raised,  may  justify  a  vessel  in  sailing  contingently  for  the  port 
in  question  with  the  intention  of  inquiring  at  the  proper  place 
into  the  fact. 

A  blockade  ceases,  whenever  the  vessels  which  constitute 
3.  when  is  a  it  are  withdrawn,  whether  with  or  without  com- 

blockade  discon-  .  . 

tinued  ?  pulsion  from  the  enemy,  so  that  the  undertaking 

is  for  the  time,  at  least,  abandoned.  If  the  vessels  return  after 
leaving  their  stations,  the  commencement  of  a  new  blockade 
requires  the  same  notification  as  before.  Common  fame  in 
regard  to  the  breaking  up  of  a  blockade  will  justify  a  neutral 
in  sailing  for  the  blockaded  port,  although,  as  we  have  seen,  it 
is  not  sufficient  notice  to  him :  he  ought  to  have  more  evidence 
of  an  interference  with  the  normal  state  of  things  than  he 
needs  to  have  of  a  return  to  it. 

*  Comp.  Wheaton,  IV.  3,  §  28 ;  Phillimore,  III.  385  ;  Ortolan,  II.  301  et  seq. 


§188  BELLIGERENTS    AND    NEUTRALS.  319 

§188. 

A  vessel  violates  the  law  of  blockade  by  some  positive  act 
of  entering  or  quitting,  or  by  showing  a  clear  and  ^Penalty  for 
speedy  intention  to  enter  a  blockaded  port.  A  adc. 
remote  intention  entertained  at  the  outset  of  the  voyage,  for 
instance,  might  be  abandoned,  and  the  seizure  of  such  a  vessel 
on  the  high  seas  would  be  unlawful.  It  must  be  at  or  near  the 
harbor,  to  be  liable  to  penalty.  The  penalty  is  confiscation, 
and  it  falls  first  on  the  ship  as  the  immediate  agent  in  the 
crime.  The  cargo  shares  the  guilt,  unless  the  owners  can  re 
move  it  by  direct  evidence.  The  presumption  is,  that  they 
knew  the  destination  of  the  vessel,  for  the  voyage  was  under 
taken  on  account  of  the  freight.  If  ship  and  cargo  are  owned 
by  the  same  persons,  the  cargo  is  confiscated  of  course. 

The  penalty  for  a  breach  of  blockade  is  held  to  continue 
upon  a  vessel  until  the  end  of  hef  return  voyage,  pamtionofiiabii. 
and  to  have  ceased,  if  she  were  captured  after  the  ity  to  Penalt^- 
actual  discontinuance  of  the  blockade.  The  reasons  for  the 
former  rule  may  be  that  the  voyage  out  and  back,  is  fairly 
looked  on  as  one  transaction,  the  return  freight  being  the 
motive  in  part  for  the  act,  and  that  time  ought  to  be  allowed 
to  the  blockading  vessels  to  pursue  and  capture  the  offender. 
The  reason  for  the  latter  is,  that  the  occasion  for  inflicting  the 
penalty  ceased  with  the  blockade. 

Besides  this  penalty  on  cargo  and  vessel,  the  older  text- 
writers  teach  that  punishment  may  be  visited  upon  the  direct 
authors  of  a  breach  of  blockade.*  Even  de  Martens  (§  320), 
declares  that  corporal  pains,  by  the  positive  law  of  nations  and 
by  natural  justice,  may  be  meted  out  to  those  who  are  guilty 
of  such  breach.  But  the  custom  of  nations,  if  it  ever  allowed 
of  such  severities,  has  long  ceased  to  sanction  them. 

*  Grotius,  m.  1,  §  6,  3 ;  Bynkersh.  Quajst.  J.  P.  I.  11 ;  Yattel,  HI.  7,  §  117. 


320  OF   THE   EELATIONS   BETWEEN  §189 

§189. 

The  natural  inclination  of  belligerents  to  stretch  their  rights 
at  sea  at  the  expense  of  neutrals,  appears  in  at- 

5.  Attempts  to  ,          '     ,  .      '     ** 

stretch  the  doc-      tempts  to  enlarge  the  extent  of  blockades  over  a 

trine  of  blockade.    ,     .  jf       -  .,-,  m   '•      A:  * 

tract  of  coast  without  a  sufficient  force ;  and  at 
'  no  time  so  much  as  at  the  end  of  the  eighteenth  and  beginning 
of  the  nineteenth  century.  In  the  war  of  France  and  Spain 
with  Great  Britain  during  the  American  revolution,  those  na 
tions  extended  the  notion  of  blockade  unduly,*  which  le'd  to 
the  declaration  of  Russia  in  1780, — afterwards  made  one  of  the 
principles  of  both  the  armed  neutralities, — that  the  blockade 
of  a  port  can  exist  only,  "  where,  through  the  arrangements  of 
the  power  which  attacks  a  port  by  means  of  vessels  stationed 
there  and  sufficiently  near,  there  is  an  evident  danger  in  en 
tering." 

The  far  more  important  aggressions  on  neutral  rights  be 
tween  the  years  1806  and  1812,  are  too  closely  connected  with 
the  affairs  of  our  own  country  to  be  passed  over  in  silence.  These 
aggressions,  under  the  continental  system,  as  it  was  called,  may 
be  traced  back  to  measures  adopted  towards  the  close  of  the 
last  century,  the  object  of  which  was  to  cripple  the  commerce 
of  England.  Thus,  in  179 6,  the  ports  of  the  ecclesiastical  state 
and  Genoa,  and  in  1801,  those  of  Naples  and  Portugal  were 
closed  to  British  vessels,  by  special  treaties  with  the  French 
republic. 

In  1806,  Prussia,  then  in  vassalage  to  Napoleon,  but  at 
•  peace  with  England,  and  being  now  in  temporary 

possession  of  Hanover,  issued  a  decree  announcing 
that  the  ports  and  rivers  of  the  North  Sea  were  closed  to  Eng 
lish  shipping,  as  they  had  been  during  the  French  occupation 
of  Hanover.  By  way  of  retaliation,  the  British  government 
gave  notice  to  neutral  powers,  that  the  coast  from  the  Elbe  to 
Brest  was  placed  in  a  state  of  blockade,  of  which  coast  the  por 
tion  from  Ostend  to  the  Seine  was  to  be  considered  as  under 
the  most  rigorous  blockade,  while  the  remainder  was  open  to 

*  Kliiber,  §  303. 


§189  BELLIGERENTS    AND    NEUTRALS.  321 

neutral  vessels  not  laden  with  enemies'  goods,  nor  with  goods 
contraband  of  war,  nor  guilty  of  a  previous  violation  of  block 
ade,  nor  sent  from  the  ports  of  enemies  of  the  British  govern 
ment. 

This  measure  led  to  the  Berlin  decree  of  Bonaparte,  bear 
ing  the  date  of  November  21,  1806.     In  this  de- 

J   £  x-U  M.  •  1      *         !•  J   -D  • 

cree,  issued  from  the  capital  of  subjugated  Prussia, 
after  reciting  the  infractions  of  international  law  with  which 
England  was  chargeable,  the  Emperor  declares  the  British 
islands  to  be  under  blockade,  and  all  commerce  with  them  to  be 
forbidden,  English  manufactures  to  be  lawful  prize,  and  vessels 
from  ports  of  England  or  her  colonies  to  be  excluded  from  all 
ports,  and  to  be  liable  to  confiscation,  if  they  should  contravene 
the  edict  by  false  papers. 

The  Berlin  decree  u  rendered  every  neutral  vessel  going 
from  English  ports  with  cargoes  of  English  mer-  First  orders  in 
chandise,  or  of  English  origin,  lawfully  seizable  council- 
by  French  armed  vessels.'"  The  British  government  was  not 
slow  in  its  retaliation.  By  an  order  of  council,  dated  Jan.  7, 
1807,  it  was  declared  "  that  no  vessel  should  be  permitted  to 
sail  from  one  port  to  another,  both  of  which  ports  should  be 
long  to  or  be  in  the  possession  of  France  or  her  allies,  or  should 
be  so  far  under  their  control,  that  British  vessels  might  not 
trade  thereat."  And  by  a  second  order  of  council,  dated  Nov. 
11,  1807,  it  was  declared  that,  as  the  previous  second  orders  in 
order  had  not  induced  the  enemy  to  alter  his  council- 
measures,  all  places  of  France,  her  allies  and  their  colonies,  as 
also  of  states  at  peace  with  Great  Britain  and  yet  excluding 
her  flag,  should  be  under  the  same  restrictions  as  to  commerce, 
as  if  they  were  blockaded  by  British  forces.  All  commerce  in 
the  productions  of  such  states  was  pronounced  illegal,  and  all 
vessels  so  engaged,  with  their  cargoes,  if  taken,  were  to  be  ad 
judged  lawful  prize.  But  neutrals  might  trade  with  the  colo 
nies,  or  even  with  the  ports  of  states  thus  under  the  ban,  for 
goods  to  be  consumed  by  themselves,  provided  they  either 

*  Words  of  M.  Champagny,  French  minister  of  foreign  relations,  Oct.  7,  1807. 
21 


322  OF    THE    RELATIONS    BETWEEN  §189 

started  from  or  entered  into  a  British  port,  or  sailed  directly 
from  the  enemies'  colonies  to  a  port  of  their  own  state.  More 
over,  as  certain  neutrals  had  obtained  from  the  enemy  "  certi 
ficates  of  origin  "  so  called,  to  the  effect  that  the  cargoes  of 
their  vessels  were  not  of  British  manufacture,  it  was  ordered 
that  vessels,  carrying  such  certificates,  together  with  the  part 
of  the  cargo  covered  by  them,  should  be  confiscated,  as  the 
prize  of  the  captor.  A  supplement  to  this  order  declared  that 
ships  sold  by  the  enemy  to  a  neutral  would  be  deemed  illegally 
sold,  and  be  considered  lawful  prize,  while  another  supplement 
regulated  'the  manner  in  which  neutrals  must  carry  on  their 
commerce,  and  prescribed  licenses,  without  which  trade  in  cer 
tain  articles  would  be  held  unlawful. 

Against  these  orders  the  French  Emperor  fulminated  the 
Milan  decree  of  Dec.  17.  1807,  declaring  that 

Milan  decree.  -•       -,  •   i  i        >L    j    ±      i  f    i  -u 

every  vessel  which  submitted  to  be  searched  by 
an  English  cruiser,  or  to  make  a  voyage  to  England,  or  to  pay 
a  tax  to  the  English  government,  had  lost  the  right  to  its  own 
flag,  and  had  become  English  property ;  that  such  vessels,  fall 
ing  into  the  hands  of  French  cruisers,  or  entering  French  ports, 
would  be  regarded  as  lawful  prize ;  and  that  every  vessel  hold 
ing  communication  with  Great  Britain  or  with  her  colonies,  if 
taken,  would  be  condemned. 

These  arbitrary  extensions  of  the  right  of  war,  by  which 
Measures  of  the  neutral  rights  were  sacrificed  to  the  retaliation  of 
the  belligerents,  were  calculated  to  grind  to  pieces 
the  few  remaining  neutral  powers.  Our  country,  being  the 
principal  state  in  this  condition,  made  strong  complaints,  the 
disregard  of  which  led  to  more  positive  measures.  In  Decem 
ber,  1807,  an  embargo  was  laid  on  commercial  vessels  in 
the  ports  of  the  United  States,  and  in  March,  1809,  was  passed 
an  act  prohibiting  intercourse  w^ith  France  and  England,  until 
their  restrictions  on  neutral  commerce  should  be  removed; 
which  act  was  to  continue  in  force  towards  either  country, 
until  it  should  revoke  its  obnoxious  decrees. 

This  led  to  some  relaxation  on  the  part  of  Great  Britain. 


§  190  BELLIGERENTS    AND    NEUTRALS.  323 

By  an  order  in  council  of  April  20.  1809.  the  British  orders  in 

J  T     -XT        -I  T      -i         council  of  April, 

ports  of  Holland,  France,  and  JNorthern  Italy,  ISOQ. 
were  to  be  placed  under  blockade,  while  the  rest  of  the  coast, 
embraced  under  previous  orders,  was  opened  to  neutral  com 
merce.  Napoleon,  as  yet,  however,  relaxed  his  system  of 
measures  in  no  degree.  In  1810,  he  ordered  all  British  manu 
factures  found  in  France  to  be  burnt,  and  the  same  regulation 
extended  to  the  states  under  French  supremacy.  This  would 
seem  to  show  that  the  prohibition  of  trade  with  England  was 
not  rigidly  enforced,  which  was  owing  in  part  to  the  deficiency 
of  the  French  naval  force,  and  in  part  to  the  great  demand  for 
British  manufactures  and  the  venality  of  revenue  officers.  .  On 
the  other  hand,  the  English,  being  masters  of  the  sea,  were 
able  to  make  their  orders  in  council  good  against  neutral  com 
merce.  It  would  seem  that  there  was  an  understanding  be 
tween  the  French  government  and  our  own,  that  the  Berlin 
decree  should  not  be  put  into  force  against  our  vessels. 

Such  continued  to  be  the  state  of  things  until  1812,  when 
the  French  government  annulled  its  obnoxious  decrees,  and 
the  British,  upon  being  made  acquainted  with  the  fact,  re 
scinded  their  retaliatory  orders,  as  far  as  concerned  American 
goods  on  American  vessels.  This  took  place  June  the  23d, — 
not  in  time  to  prevent  the  war  with  Great  Britain,  which  the 
United  States  had  already  begun  in  the  same  month,  and  a 
principal  pretext  for  which  was  these  same  orders  in  council. 

§190. 

In  order  to  enforce  the  right  of  preventing  neutrals  from 
conveying  hostile  or  contraband  goods  on  their  Therightof 
ships,  and  from  breaking  blockade,  it  is  necessary  Bearch- 
that  the  belligerents  should  be  invested  with  the  right  of  search 
or  visit.     By  this  is  intended  the  right  to  stop  a  neutral  vessel 
on  the  high  seas,  to  go  on  board  of  her,  to  examine  her  papers, 
and,  it  may  be,  even  her  cargo, — in  short,  to  ascertain  by  per 
sonal  inspection  that  she  is  not  engaged  in  the  infraction  of 
any  of  the  rights  above  enumerated. 

The  right  of  search  is  by  its  nature  confined  within  narrow 


324:  OF    THE    RELATIONS    BETWEEN  §  190 

confined  within  limits,  for  it  is  merely  a  method  of  ascertaining 
narrow  limits.  .^  certain  specific  violations  of  right  are  not 
taking  place,  and  would  otherwise  be  a  great  violation,  itself, 
of  the  freedom  of  passage  on  the  common  pathway  of  nations. 
In  the  fir§t  place,  it  is  only  a  war  right.  The  single  exception 
to  this  is  spoken  of  in  §  194,  viz.  that  a  nation  may  laVfully 
send  a  cruiser  in  pursuit  of  a  vessel  which  has  left  its  port 
under  suspicion  of  having  committed  a  fraud  upon  its  revenue- 
laws,  or  some  other  crime.  This  is  merely  the  continuation 
of  a  pursuit  beyond  the  limits  of  maritime  jurisdiction  with  the 
examination  conducted  outside  of  these  bounds,  which,  but  for 
the  flight  of  the  ship,  might  have  been  conducted  within.  In 
the  second  place,  it  is  applicable  to  merchant  ships  alone. 
Yessels  of  war,  pertaining  to  the  neutral,  are  exempt  from  its 
exercise,  both  because  they  are  not  wont  to  convey  goods,  and 
because  they  are,  as  a  part  of  the  power  of  the  state,  entitled 
to  confidence  and  respect.  If  a  neutral  state  allowed  or  re 
quired  its  armed  vessels  to  engage  in  an  unlawful  trade,  the 
remedy  would  have  to  be  applied  to  the  state  itself.  To  all 
this  we  must  add  that  a  vessel  in  ignorance  of  the  public  char 
acter  of  another,  for  instance,  suspecting  it  to  be  a  piratical 
ship,  may  without  guilt  require  it  to  lie  to,  but  the  moment 
the  mistake  is  discovered,  all  proceedings  must  cease.  (§§  54, 
195.)  In  the  third  place,  the  right  of  search  must  be  exerted 
in  such  a  way  as  to  attain  its  object,  and  nothing  more.  Any 
injury  done  to  the  neutral  vessel  or  to  its  cargo,  any  oppressive 
or  insulting  conduct  during  the  search,  may  be  good  ground 
for  a  suit  in  the  court  to  which  the  cruiser  is  amenable,  or  even 
for  interference  on  the  part  of  the  neutral  state  to  which  the 
vessel  belongs. 

It  is  plain,  from  the  reality  of  the  right  of  search,  that  an 
Duty  of  submit-  obligation  lies  on  the  neutral  ship  to  make  no 
ting  to  a  search.  resistance.  The  neutral  is  in  a  different  relation 
to  the  belligerents  than  the  vessels  of  either  of  them  to  the 

O 

other.  These  can  resist,  can  run  away,  unless  their  word  is 
pledged,  but  he  cannot.  Annoying  as  the  exercise  of  this  right 
may  be,  it  must  be  submitted  to,  as  even  innocent  persons  are 


§  191  BELLIGERENTS    AND    NEUTRALS.  325 

bound  to  submit  to  a  search-warrant  for  the  sake  of  general 
justice.  Any  resistance,  therefore,  or  attempt  to  escape,  or  to 
get  free  from  the  search  or  its  consequences,  by  force,  if  they 
do  not  bring  on  the  destruction  of  the  vessel  at  the  time,  may 
procure  its  confiscation,  even  though  it  had  been  engaged  in  a 
traffic  'entirely  innocent. 

This  delicate  right  is  often  regulated  by  treaties  prescribing 
the  distance  at  which  the  visiting  vessel  shall  re- 

f,  .,  1,1  •    •,     i         i  •    i      •       •       Treaties  often 

main  irom  the  vessel  to  be  visited,  wnicn  is  in  regulate  the  right 

i  •  -i  •  -i  -i  -I  of  search. 

general  not  within  cannot-shot ;  the  number  of 
persons  to  undertake  the  examination,  as  that  only  two  besides 
the  oarsmen  shall  pass  to  the  merchant  vessel ;  and  the  amount 
of  evidence,  which  shall  satisfy, — as  that  the  ship  itself  shall 
not  be  searched,  if  the  proper  papers  are  on  board,  unless  there 
is  good  ground  for  suspicion  that  these  papers  do  not  give  a 
true  account  of  the  cargo,  ownership,  or  destination. 

§191. 

A  search  at  sea  is  exceedingly  annoying,  not  only  because 
it  may  affect  an  innocent  party,  and  may  cause  Is  therc  a  right 
expensive  delays,  but  also  because  those  who  are  ofconv°y? 
concerned  in  it  are  often  insolent  and  violent.  What  can  be 
expected  of  a  master  of  a  privateer,  or  of  an  inferior  officer  in 
the  navy,  urged  perhaps  by  strong  suspicion  of  the  neutral's 
guilt,  but  that  he  will  do  his  office  in  the  most  offensive  and 
irritating  manner  ?  To  prevent  these  annoyances,  governments 
have  sometimes  arranged  with  one  another,  that  the  presence 
of  a  public  vessel,  or  convoy,  among  a  fleet  of  merchantmen, 
shall  be  evidence  that  the  latter  are  engaged  in  a  lawful  trade. 
But  neutrals  have  sometimes  gone  farther  than  this,  they  have 
claimed,  without  previous  treaty,  that  a  national  ship  convoy 
ing  their  trading  vessels,  shall  be  a  sufficient  guaranty  that  no 
unlawful  traffic  is  on  foot.  The  beginnings  of  such  a  claim 
proceeded  from  the  Dutch  in  the  middle  of  the  Historical  must™- 
17th  century,  but  the  first  earnest  and  concerted  tione- 
movement  on  the  part  of  neutrals  for  this  end,  was  made  near 
the  end  of  the  last  century,  at  which  time,  also,  the  principal 


326  OF    THE    RELATIONS    BETWEEN  §191 

maritime  powers,  excepting  Great  Britain,  made  treaties  estab 
lishing  the  right  of  convoy  between  themselves.  From  this 
starting  point,  neutrals  went  on  to  claim  that  this  right  ought 
to  be  regarded  as  a  part  of  the  law  of  nations,  and  to  employ 
force,  when  Great  Britain  exercised,  without  respect  to  the 
convoy,  the  right  of  search  on  the  old  plan.  In  1798,  the  con 
voy  of  a  fleet  of  Swedish  merchantmen,  having,  in  conformity 
with  instructions,  taken  a  British  officer  out  of  one  of  the 
vessels  of  commerce,  the  whole  fleet  was  captured,  and  Sir 
William  Scott,  in  the  British  admiralty  court,  decided  that  the 
act  of  violence  subjected  all  the  vessels  to  condemnation.* 
Not  long  after  this,  in  1800,  a  Danish  frigate  in  the  Mediter 
ranean,  acting  as  a  convoy,  fired  on  the  boats  sent  from  British 
frigates  to  examine  the  merchant  vessels  under  its  protection. 
The  act  was  repeated  v  in  July  of  the  same  year  by  another 
frigate  of  the  same  nation,  then  neutral  but  ill-affected  towards 
England.  The  frigate,  named  the  Freya,  with  six  trading 
vessels  under  its  care,  met  six  British  ships  of  war,  when  the 
refusal  of  a  demand  to  search  the  merchantmen  led  to  acts  of 
hostility,  which  resulted  in  the  surrender  of  the  Danish  national 
vessel.  In  consequence,  however,  of  negotiations  between  the 
two  governments,  the  ship  was  released,  and  it  was  agreed,  on 
the  part  of  the  Danes,  that  the  right  of  convoy  should  not  be 
exercised,  until  some  arrangement  should  be  made  touching 
this  point. 

These  collisions  were  one  of  the  reasons  for  the  formation 
of  the  second  armed  neutrality  of  1800.  In  that  league  the 
contracting  powers  (Russia,  Sweden,  Denmark,  and  Prussia) 
laid  down  the  following  basis  of  a  right  of  convoy,  and  of  visit 
generally  :  (1.)  That  the  right  of  visit,  exercised  by  belligerents 
on  vessels  of  the  parties  to  the  armed  neutrality,  shall  be  con 
fined  to  public  vessels  of  war,  and  never  committed  to  priva 
teers.  (2.)  That  trading  vessels  of  any  of  the  contractants, 
under  convoy,  shall  lodge  with  the  commander  of  the  convoy 
ing  vessel  their  passports  and  certificates  or  sea-letters,  drawn 

*  Case  of  the  Maria,  1  Robinson's  Rep.  340-379. 


§191  BELLIGERENTS    AND    NEUTRALS.  327 

up  according  to  a  certain  form.  (3.)  That  when  such  vessel 
of  convoy  and  a  belligerent  vessel  meet,  they  shall  ordinarily 
be  beyond  the  distance  of  cannon-shot  from  one  another,  and 
that  the  belligerent  commander  shall  send  a  boat  to  the  neu 
tral  vessel,  whereupon  proofs  shall  be  exhibited  both  that  the 
vessel  of  convoy  has  a  right  to  act  in  that  capacity,  and  that 
the  visiting  vessel  in  truth  belongs  to  the  public  navy.  (4.) 
This  done,  there  shall  be  no  visit,  if  the  papers  are  according 
to  rule.  Otherwise,  the  neutral  commander,  on  request  of  the 
other,  shall  detain  the  merchantmen  for  visits,  which  shall  be 
made  in  the  presence  of  officers  selected  from  the  two  ships  of 
war.  (5.)  If  the  commander  of  the  belligerent  vessels  finds 
that  there  is  reason  in  any  case  for  further  search,  on  notice 
being  given  of  this,  the  other  commander  shall  order  an  officer 
to  remain  on  board  the  vessel  so  detained,  and  assist  in  ex 
amining  into  the  cause  of  the  detention.  Such  vessel  is  to  be 
taken  to  the  nearest  convenient  port  belonging  to  the  belliger 
ent,  wThere  the  ulterior  search  shall  be  conducted  with  all  pos 
sible  despatch.* 

The  armed  neutrality  was  succeeded  by  retaliatory  embar 
goes,  and  on  the  2d  of  April,  1801,  the  battle  of  Copenhagen 
prostrated  the  power  of  Denmark.  Conventions  were  soon 
afterwards  effected  between  Great  Britain  and  the  northern 
powers,  by  which  they  gave  up  the  principle  of  u  free  ships, 
free  goods ; "  and  she  acceded  to  their  rulqs  of  convoy,  stipulat 
ing  also,  in  addition  to  the  articles  we  have  given  above,  that 
detention  without  due  cause,  and  all  acts  of  wrong,  should 
render  the  commander  of  the  belligerent  force  not  only  liable 
for  damages  to  the  proprietors  of  the  vessels,  but  obnoxious 
to  punishment. 

The  right  of  convoy,  although  not  entitled  to  take  a  place 
in  the  international  code,  apparently  approaches  such  a  destiny, 
inasmuch  as  it  is  now  engrafted  into  the  conventional  law  of 
almost  all  nations.  Whether,  as  some  put  it,  the  word  of 
honor  of  the  commander  of  the  convoying  vessel  ought  to  be 

*  Cited  from  Hefiter,  §  170,  note  2.     See  append.  II.  p.  397. 


328  OF    THE    RELATIONS    BETWEEN  §192 

sufficient  proof,  may  fairly  be  doubted.  The  French  orders  to 
their  naval  officers,  issued  in  1854,  for  the  war  with  Russia, 
deserve  notice  for  contemplating  this  point.  "  You  shall  not," 
say  they,  "  visit  vessels  which  are  under  the  convoy  of  an  allied 
or  neutral  ship  of  war,  and  shall  confine  yourselves  to  calling 
upon  the  commander  of  the  convoy  for  a  list  of  the  ships  placed 
under  his  protection,  together  with  his  written  declaration  that 
they  do  not  belong  to  the  enemy,  and  are  not  engaged  in  any 
illicit  commerce.  If,  however,  you  have  occasion  to  suspect 
that  the  commander  of  the  convoy  has  been  imposed  upon  [que 
la  religion  du  commandant  du  convoi  a  ete  surprise],  you  must 
communicate  your  suspicions  to  that  officer,  who  should  pro 
ceed  alone  to  visit  the  suspected  vessel." 

§192. 

On  the  ground  of  justice  this  right  cannot  be  defended.  It 
justice  of  the  *s  sa^  that  ^ie  commander  of  the  convoying  vessel 
right  of  convoy,  represents  the  state,  and  the  state  guarantees  that 
nothing  illicit  has  been  put  on  board  the  merchantmen.  But 
how  can  the  belligerent  know  whether  a  careful  search  was 
made  before  sailing,  whether  the  custom-house  did  not  lend 
itself  to  deception?  It  is  only  by  comity  that  national  vessels 
are  allowed  their  important  privileges ;  how,  except  by  a  posi 
tive  and  general  agreement,  can  those  privileges  be  still  further 
extended,  so  as  to  limit  the  belligerent  right  of  search  ?  But 
on  the  ground  of  international  good-will  the  right  is  capable 
of  defence,  and,  so  far  as  we  can  see,  except  where  the  protect 
ed  fleet  is  far  separated  by  a  storm  from  its  guardian, — in 
which  case,  we  suppose  the  ordinary  right  of  search  must  be 
resumed, — can  be  exercised  in  the  interests  of  belligerents  as 
well  as  neutrals. 

§193. 

A  novel  case  in  international  law  arose,  when,  in  1810, 
Neutrals  under  Denmark,  being  at  war  with  England,  issued  an 

belligerent  con-  '  _°   .  °     .  . 

voy.  ordinance,  declaring  to  be  lawful  prize  such  neu 

tral  vessels,  as  had  either  in  the  Baltic  or  the  Atlantic  made 


§  194  BELLIGERENTS    AND    NEUTRALS.  329 

use  of  English  convoy.  A  number  of  vessels  from  the  United 
States,  bound  to  Eussia,  had  placed  themselves  under  English 
protection,  and  on  their  return,  were  seized  and  condemned  in 
Denmark,  not  for  resistance  to  search,  nor  for  the  character  of 
their  traffic,  but  for  violating  an  ordinance  to  them  unknown. 
The  arguments  of  our  negotiator  setting  forth  the  injustice  of 
this  proceeding,  are  given  at  large  in  Dr.  Wheaton's  Elements 
(IY.  3,  §  32,  556-566),  and  Mr.  Manning  has  expressed  a 
brief  opinion  on  the  contrary  side,  in  favor  of  the  Danish  rule. 
(III.  11,  p.  369.)'  The  ships  appear  to  have  been  engaged  in 
an  innocent  trade,  and  to  have  dreaded  the  treatment  they 
might  meet  with  from  French  cruisers,  but  not  to  have  sought 
to  avoid  the  allies  of  the  French,  the  Danes.  The  case  was  a 
peculiarly  hard  one,  when  they  were  condemned;  and  this 
Denmark  admitted  in  1830,  by  paying  an  indemnity  to  our 
government  for  the  sufferers.  As  for  the  principle  on  which 
the  case  is  to  be  decided,  it  seems  to  run  between  making  use 
of  the  enemy's  flag,  and  putting  one's  goods  on  board  an  armed 
enemy's  vessel.  The  former  is  done  to  enjoy  certain  privileges, 
offered  by  a  party  at  war,  which  could  not  otherwise  be 
secured ;  the  latter  may  be  done  without  complicity  with  the 
intentions  or  conduct  of  the  captain  of  the  armed  ship,  or  may 
be  done  with  the  design  of  having  two  strings  to  one's  bow, — 
of  availing  one's-self  of  force  or  not,  as  circumstances  shall 
require.  Upon  the  whole,  the  intention  to  screen  the  vessels 
behind  the  enemy's  guns,  is  so  obvious,  that  the  act  must  be 
pronounced  to  be  a  decided  departure  from  the  line  of  neutrali 
ty,  and  one  which  may  justly  entail  confiscation  on  the  offend 
ing  party. 

§194, 

It  is  admitted  by  all,  that  within  the  waters  which  may  be 
called  the  territory  of  nations,  as  within  a  marine 

-,  •  TII  T  i        f>         Search  during 

league,  or  in  creeks  and  bays,  the  vessel  ot  a  peace  to  execute 
friendly  state  may  be  boarded  and  searched  on 
suspicion  of  being  engaged  in  unlawful  commerce,  or  of  violat 
ing  the  laws  concerning  revenue.     But  further  than  this,  on 


330  OF    THE    RELATIONS    BETWEEN  §  195 

account  of  the  ease  with  which  a  criminal  may  escape  beyond 
the  proper  sea-line  of  a  country,  it  is  allowable  to  chase  such  a 
vessel  into  the  high  sea,  and  then  execute  the  arrest  and  search 
which  flight  had  prevented  before.  Furthermore,  suspicion  of 
offences  against  the  laws  taking  their  commencement  in  the 
neighboring  waters  beyond  the  sea-line,  will  authorize  the  de 
tention  and  examination  of  the  supposed  criminal.  An  English 
statute  "  prohibits  foreign  goods  to  be  transhipped  within  four 
leagues  of  the  coast  without  payment  of  duties ;  and  the  act  of 
congress  of  March  20,  1799,  contained  the  same  prohibition; 
and  the  exercise  of  jurisdiction  to  that  distance,  for  the  safety 
and  protection  of  the  revenue  laws,  was  declared  by  the 
supreme  court  in  Church  v.  Hubbard  (2  Crdnch,  187),  to  be 
conformable  to  the  laws  and  usages  of  nations."  (Kent,  I.  31, 
Lect.  II.) 

§195. 

That  kind  of  right  of  search,  which  we  have  just  considered, 
search  on  BUBPI-  is  an  accident  of  sovereignty  in  a  state  of  peace, 
don  of  piracy.  ^^  js  C0nfined  in  its  exercise  to  a  small  range  of 
the  sea.  The  right  of  search  on  suspicion  of  piracy,  however, 
is  a  war-right,  and  may  be  exercised  by  public  vessels  any 
where  except  in  the  waters  of  another  state,  because  pirates  are 
enemies  of  the  human  race,  at  war  with  all  mankind.  The 
supreme  court  of  the  United  States  has  decided  that  ships  of 
war  acting  under  the  authority  of  government  to  arrest  pirates 
and  other  public  offenders,  may  "  approach  any  vessels  descried 
at  sea  for  the  purpose  of  ascertaining  their  real  character."  * 
And  thus  even  public  vessels,  suspected  of  piracy,  may  be 
called  to  account  upon  the  ocean.  Whether  the  detention  of 
a  vessel  unjustly  suspected  of  piracy  may  not  be  a  ground  for 
a  claim  of  damages  may  be  made  a  question. 

*  Case  of  the  Marianna  Flora,  11  Wheaton,  43. 


§  197  BELLIGERENTS   AXD   NEUTRALS.  331 

§196. 

As  the  slave-trade  is  not  as  yet  piracy  by  the  law  of  nations, 
but  only  by  the  municipal  and  conventional  law  Bearchof  foreign 
of  certain  nations  (§  138),  no  state  can  authorize  JJ^XS?1 
its  cr uisers  to  detain  and  visit  vessels  of  other  states  u»au^«"^d, 
on  suspicion  of  their  being  concerned  in  this  traffic,  because 
the  right  of  detention  and  visit  is  a  war-right.  Every  state 
may,  to  carry  out  its  laws  and  the  laws  of  humanity,  detain 
and  search  its  own  vessels  in  peace  also,  but  if,  in  so  doing, 
mistakes  are  committed,  the  commander  of  the  searching 
vessel  is  responsible,  and  damages  may  be  demanded. 

§191 

Such  right,  however,  of  reciprocal  detention  and  visitation 
upon  suspicion  of  being  engaged  in  the  slave- 
trade  has  been  conceded  by  a  considerable  number  ££tS<S25?wn 
of  treaties  between  the  principal  powers  of  Europe.  ™00n8* °ff  Europe, 
Previous  to  the  downfall  of  Bonaparte  there  had 
been  a  falling  off  of  the  traffic  in  slaves ;  for  Great  Britain, 
who  had  prohibited  her  own  citizens  from  the  traffic,  prevent 
ed  also  her  enemies  from  engaging  in  it  by  her  command  of 
the  seas ;  it  had,  moreover,  long  been  forbidden  under  heavy 
penalties  by  the  United  States ;  and  there  were  then  on  this 
side  of  the  water  few  motives  for  engaging  in  so  dangerous  an 
employment.     At  the  peace,  although  the  sentiment  of  Europe 
was  expressed  against  the  slave-trade,  the  nations  most  in 
terested  in  resuming  it,  France,  Spain  and  Portugal,  refused 
to  give  it  up  at  once,  alleging  that  their  colonies  needed  to  be 
replenished  with  slave-laborers,  while  those  of  England  were 
fully  stocked.     The  first  concession  of  the  right  of  search  is  to 
be  found  in  the  treaty  between  Portugal  and  Eng-  as  England  and 
land  made  July  28,  1817,— which,  however,  re-  i^tugaimisn. 
lated  only  to  the  trade  north  of  the  equator  ;  for  the  slave-trade 
of  Portugal  within  the  regions  of  western  Africa,  to  the  south 
of  the  equator,  continued  long  after  this  to  be  carried  on  with 
great  vigor.     By  this  treaty,  ships  of  war  of  each  of  the  nations 


•- 


332  OF    THE    RELATIONS    BETWEEN  §  197 

might  visit  merchant  vessels  of  both,  if  suspected  of  having 
slaves  on  board,  acquired  by  illicit  traffic.  By  the  treaty  of 
Madrid,  of  the  same  year,  Great  Britain  obtained  from  Spain, 

Treaty  of  Madrid     ^°r  ^6  SUm  °^  ^OUr  hundred  thousand  pounds,  the 

1817>  immediate  abolition  of  the  trade,  north  of  the 

equator,  its  entire  abolition  after  1820,  and  the  concession  of 
the  same  mutual  right  of  search,  which  the  treaty  with  Portu 
gal  had  just  established.  The  precedent  was  followed  by  a 
treaty  of  Great  Britain  with  the  Netherlands,  in  1818,  which 
also  contemplated  the  establishment  of  a  mixed  commission  to 
other  treaties  in  decide  upon  the  cases  of  vessels  seized  on  suspicion 
1818,1824.  of  slave-trading.  Stipulations  somewhat  similar 

were  made  between  Sweden  and  Great  Britain  in  1824. 

In  1831  and  1833,  conventions  between  France  and  Great 
conventions  in  Britain  included  one  more  power  in  arrangements 
jSn^detween  for  mutual  search.  But  the  right  of  search  was 
only  admissible  on  the  western  coast  of  Africa 
from  Cape  Yerd  (15°  North  Lat.)  to  the  tenth  degree  of  south 
latitude,  and  to  the  thirteenth  degree  of  west  longitude  from 
the  meridian  of  Paris,  and  also  around  Madagascar,  Cuba,  and 
Porto  Rico,  as  well  as  on  the  coast  of  Brazil  to  the  distance 
into  the  sea  of  twenty  leagues.  It  was  agreed,  however,  that 
suspected  vessels,  escaping  beyond  this  range  of  twenty  leagues, 
might  be  detained  and  visited  if  kept  in  sight.  As  to  steps 
subsequent  to  capture  no  mixed  commission  was  allowed,  but 
the  captured  vessel  was  to  be  tried  in  the  country  to  whose 
jurisdiction  it  belonged,  and  by  its  courts. 

By  the  quintuple  treaty  of  December  20,  1841,  to  which 
Quintuple  treaty  Great  Britain,  Austria,  Prussia,  Eussia,  and 
France,  were  parties,  all  these  powers,  excepting 
the  latter,  conceded  to  one  another  the  mutual  right  of  search 
within  very  wide  zones  of  ocean  between  Africa  and  America, 
and  on  the  eastern  side  of  Africa  across  th<e  Indian  ocean. 
France,  however,  owing  to  popular  clamor,  and  the  dislike 
entertained  by  almost  the  entire  chamber  of  deputies  toward 
the  right  of  search,  withheld  her  ratification  and  adhered  to 
her  arrangements  of  1831  and  1833,  above  spoken  of,  until  the 


§198  BELLIGERENTS    AND    NEUTRALS.  333 

year  1845.     In  that  year  she  withdrew  her  consent  to  the 
mutual  right  of  search  altogether,— as  the  terms  France<  in  1845> 
of  the  conventions  allowed  her  to  do,— but  stipu-  ^ednrtaro8ah^ght 
lated  to  cooperate  with  Great  Britain  in  suppress-  of  ecarcb- 
ing  the  slave-trade  by  sending  a  squadron  to  the   coast   of 
Africa.     Each  power  engaged  to  keep  twenty-six  vessels  on 
the  coast  for  this  service,  at  first,  but  the  number  on  the  part 
of  France  was  afterward  to  be  reduced  to  one  half.     This  is 
believed  to  be  the  existing  arrangement. 

§198. 

The  treaty  of  Ghent,  which  terminated  the  war  between 
the  United  States  and  Great  Britain  on  the  24th  obligations  of  the 
of  December,  1814,  contains  the  following  article :  ^o'th^e- 
"Whereas  the  traffic  in  slaves  is  irreconcilable  t] 
with  the  principles  of  humanity  and  justice ;  and  whereas  both 
His  Britannic  Majesty  and  the  United  States  are  desirous  of 
continuing  their  efforts  to  promote  its  entire  abolition,  it  is 
hereby  agreed  that  both  the  contracting  parties  shall  use  their 
best  endeavors  to  accomplish  so  desirable  an  object."  The  act 
passed  by  Congress  in  1818,  which  increased  the  penalties  hang 
ing  over  this  traffic  and  extended  their  application ;  that  of 
1819,  which  authorized  the  sending  of  armed  vessels  to  the  coast 
of  Africa,  and  the  confiscation  of  slave-trading  ships  belonging 
to  citizens  or  foreign  residents,  together  with  the  effects  on  board ; 
and  the  act  of  1820,  by  which  the  slave-trade,  wherever  carried 
on,  was  declared  to  be  piracy  both  for  all  persons  on  Ameri 
can  craft  so  employed,  and  for  American  citizens  serving  on 
board  vessels  of  any  nationality, — these  several  acts  show  that 
the  United  States  were  sincerely  endeavoring  "  to  accomplish 
so  desirable  an  object "  as  the  entire  abolition  of  this  infamous 
traffic. 

But  the  trade  continued  notwithstanding  such  legislation, 
and  it  would  appear  that  vessels  and  crews  from  the  United 
States  were  concerned  in  it,  acting  in  the  interest  of  Cubans, 
but  especially  of  Portuguese  in  Brazil.  The  British  govern 
ment,  therefore,  from  time  to  time,  urged  on  that  of  the  United 


334:  OF    THE    RELATIONS    BETWEEN  §198 

States  the  adoption  of  more  effectual  measures  to  comply  with 
the  stipulations  of  the  treaty  of  Ghent.  In  particular  it  urged 
that  the  two  nations  should  concede  to  each  other  the  right  of 
search,  with  the  single  object  in  view  of  ascertaining  whether 
a  suspected  vessel  was  really  concerned  in  the  slave-trade.  To 
this  the  United  States  uniformly  declined  giving  their  assent. 
The  right  of  search  was  an  odious  one  even  in  war,  and  pecu 
liarly  odious,  because  British  cruisers  had  exercised  it  in  an 
overbearing  and  illegitimate  way,  when  the  United  States 
were  a  neutral  nation.  It  would,  if  admitted,  naturally  in 
volve  a  mixed  court  for  deciding  cases  of  capture,  which  court, 
stationed  in  a  foreign  country,  and  composed  of  judges  not  all 
of  them  amenable  to  our  laws,  did  not  afford  to  native  citizens 
brought  before  it  those  securities,  which  are  guaranteed  to 
them  by  the  constitution. 

Meanwhile,  in  February,  1823,  by  a  vote  of  one  hundred 
Resolution  of  anc^  thirty-one  to  nine,  the  House  of  Representa 
tives  passed  the  following  resolution :  "  That  the 
President  of  the  United  States  be  requested  to  enter  upon  and 
to  prosecute,  from  time  to  time,  such  negotiations  with  the 
several  maritime  powers  of  Europe  and  America,  as  he  may 
deem  expedient  for  the  effectual  abolition  of  the  African  slave 
trade,  and  its  ultimate  denunciation  as  piracy  under  the  law 
of  nations  by  the  consent  of  the  civilized  world."  The  Secre 
tary  of  State,  John  Q.  Adams,  in  transmitting  this  resolution 
to  the  British  negotiator,  says  that  "  the  President  has  no 
hesitation  in  acting  upon  the  expressed  and  almost  unanimous 
sense  of  the  House  of  Representatives,  so  far  as  to  declare  the 
willingness  of  the  American  Union  to  join  with  other  nations 
in  the  common  engagement  to  pursue  and  punish  those  who 
shall  continue  to  practise  this  crime,  and  to  fix  them  irrevoca 
bly  in  the  class  and  under  the  denomination  of  pirates." 

Most  unfortunately  the  international  arrangements  here 
contemplated  were  not  carried  into  effect.  The  British  gov 
ernment  conceived,  as  we  presume,  that  it  would  be  very  dif 
ficult  to  bring  the  other  nations  into  similar  agreements,  and 
in  fact  did  not,  itself,  carry  through  parliament  a  law  making 


§  198  BELLIGERENTS    AND    NEUTRALS.  335 

the  slave-trade  piracy  until  March  31, 1824.  Again,  therefore, 
the  old  plan  of  mutual  search  was  urged ;  but,  although  there 
was  some  little  expectation  that  an  agreement  might  be  reach 
ed,  on  the  basis  of  delivering  over  captured  vessels  to  the  juris 
diction  of  their  own  country,  and  of  holding  the  captor  respon 
sible  for  any  improper  acts  to  the  tribunal  of  the  captured 
party,  yet  no  definite  result  came  from  the  correspondence 
between  Mr.  Adams  and  the  British  minister  at  Washington. 
This  correspondence  deserves  especial  attention  from  the  ability 
with  which  the  Secretary  of  State  discusses  the  right  of  search. 
The  negotiations  were  now  transferred  to  England,  where, 
on  the  13th  of  March,  in  1824,  the  two  govern- 

Nocrotiations  in 

ments,  by  their  representatives,  signed  a  conven- 
tion  which  nearly  accomplished  the  object  at  which 
they  had  been  aiming.  By  this  convention  the  officers  of 
certain  public  vessels,  duly  instructed  to  cruise  on  the  coasts 
of  Africa,  America,  and  -the  West  Indies,  were  authorized  to 
detain  and  examine  vessels  suspected  of  being  engaged  in  the 
illicit  traffic  in  slaves.  If,  after  search,  such  vessels  were  found 
to  be  so  employed,  they  were  to  be  delivered  up  to  the  officers 
of  a  vessel -of  the  same  nationality,  who  might  be  on  the 
station;  or,  if  there  were  no  cruisers  nigh,  were  to  be  conveyed 
to  the  country  to  which  such  slavers  belonged,  or  to  one  of  its 
dependencies,  and  placed  within  the  reach  of  its  tribunals. 
Officers  exercising  the  right  of  search  in  a  vexatious  or  injuri 
ous  manner,  were  to  be  personally  liable  in  costs  and  damages 
to  the  masters  or  owners  of  vessels  detained  and  visited.  In 
all  cases  of  search  the  boarding  officers  were  to  give  certificates 
to  the  captains,  identifying  themselves,  and  declaring  their 
object  to  be  simply  and  solely  that  of  ascertaining  whether  the 
merchantman  was  engaged  in  the  slave-trade.  Other  provis 
ions  secured  the  right  of  challenging  witnesses,  and  the  pay 
ment  of  their  expenses.  The  tenth  article  we  give  in  its  own 
words :  <<  The  high  contracting  parties  declare  that  the  right, 
which,  in  the  foregoing  articles,  they  have  each  reciprocally 
conceded,  of  detaining,  visiting,  capturing,  and  delivering  over 
for  trial  the  merchant  vessels  of  the  other  engaged  in  the 


336  OF    THE    RELATIONS    BETWEEN  §  198 

African  slave-trade,  is  wholly  and  exclusively  grounded  on  the 
consideration  of  their  having  made  that  traffic  piracy  by  their 
respective  laws ;  and  further,  that  the  reciprocal  concession  of 
said  right,  as  guarded,  limited,  and  regulated  by  this  conven 
tion,  shall  not  be  so  construed  as  to  authorize  the  detention  or 
search  of  the  merchant  vessels  of  either  nation  by  the  officers 
of  the  navy  of  the  other,  except  vessels  engaged,  or  suspected 
of  being  engaged,  in  the  African  slave-trade,  or  for  any  other 
purpose  whatever  than  that  of  seizing  and  delivering  up  the 
persons  and  vessels,  concerned  in  that  traffic,  for  trial  and 
adjudication  by  the  tribunals  and  laws  of  their  own  country ; 
nor  be  taken  to  affect  in  any  other  way  the  existing  rights  of 
either  of  the  high  contracting  parties.  And  they  do  also  here 
by  agree,  and  engage  to  use  their  influence,  respectively,  with 
other  maritime  and  civilized  powers,  to  the  end  that  the 
African  slave-trade  may  be  declared  to  be  piracy  under  the 
law  of  nations." 

When  this  convention  came  before  the  Senate  of  the  United 
Amended  by  States  they  amended  it  as  follows:  (1.)  Either 
th"n%°efctedby  party  might  renounce  the  convention  after  six 
G.  Britain.  months'  notice.  (2.)  The  cruising  of  vessels  on 

the  search  for  slavers  was  limited  to  Africa  and  the  West 
Indies,  America  being  stricken  out.  (3.)  Article  YII.  of  the 
convention  speaks  of  trying  for  piracy  citizens  or  subjects  of 
either  country  found  on  board  a  vessel  not  "  carrying  the  flag 
of  the  other  party,  nor  belonging  to  the  citizens  or  subjects  of 
either,  but  engaged  in  the  illicit  traffic  of  slaves,  and  lawfully 
seized  by  the  cruisers  of  the  other  party."  This,  also,  was 
struck  out  by  the  Senate.  Such  cases  would  be  those  of 
American  citizens  on  board  of  Portuguese  or  other  slavers 
subject  to  search  by  special  treaty  with  Great  Britain,  who 
were  committing  an  offence  capital  by  the  laws  of  their  own 
country,  but  not  capital  by  those  of  the  country  of  the  vessel. 
The  convention,  thus  mutilated,  went  back  to  England  to  be 
rejected,  and  so  the  affair  ended. 


§  199  BELLIGERENTS   AND    NEUTRALS.  337 

§199. 

The  treaty  of  Washington,  signed  August  9, 1842,  contains 
new  arrangements  in  regard  to  the  right  of  search  ^reaty  of  Waeh, 
which  have  served  until  of  late  as  the  rule  of  prac-  inston  in  1S42- 
tice  for  the  cruisers  of  the  two  countries.  In  article  YIII.  of 
that  treaty  occur  the  following  words:  "Whereas,  notwith 
standing  the  laws  which  have  at  various  times  been  passed  by 
the  two  governments,  that  criminal  traffic  is  still  prosecuted 
and  carried  on  ;  and  whereas  the  United  States  of  America  and 
Her  Majesty,  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  are  determined  that,  so  far  as  it  may  be 
in  their  power,  it  shall  be  effectually  abolished ;  the  parties 
mutually  stipulate  that  each  shall  prepare,  equip,  and  maintain 
in  service,  on  the  coast  of  Africa,  a  sufficient  and  adequate 
squadron  or  naval  force  of  vessels,  of  suitable  numbers  and 
descriptions,  to  carry  in  all  not  less  than  eighty  guns,  to  en 
force  separately  and  respectively  the  laws,  rights,  and  obliga 
tions  of  each  of  the  two  countries  for  the  suppression  of  the 
slave-trade:  the  said  squadrons  to  be  independent  of  each 
other;  but  the  two  governments  stipulating  nevertheless  to 
give  such  orders  to  the  officers  commanding  their  respective 
forces  as  shall  enable  them  most  effectually  to  act  in  concert 
and  cooperation,  upon  mutual  consultation,  as  exigencies  may 
arise,  for  the  attainment  of  the  true  object  of  this  article, 
copies  of  all  such  orders  to  be  communicated  by  each  govern 
ment  respectively."  To  this,  article  IX.  adds,  that  "  whereas, 
nothwithstanding  all  efforts  that  may  be  made  on  the  coast  of 
Africa  for  suppressing  the  slave-trade,  the  facilities  for  carry 
ing  on  that  traffic  and  avoiding  the  vigilance  of  cruisers,  by 
the  fraudulent  use  of  flags  and  other  means,  are  so  great,  and 
the  temptations  for  pursuing  it,  while  a  market  can  be  found 
for  slaves,  so  strong,  as  that  the  desired  result  may  be  long 
delayed,  unless  all  markets  be  shut  against  the  purchase  of 
African  negroes,  the  parties  to  this  treaty  agree  that  they  will 
unite  in  all  becoming  remonstrances  with  any  and  all  powers, 
within  whose  dominions  such  markets  are  allowed  to  exist ;  and 
that  they  will  urge  upon  all  such  powers  the  propriety  and 
22 


338  OF    THE    RELATIONS    BETWEEN  §  200 

duty  of  closing  such  markets  forever."  By  article  XI.  it  is 
provided  that  the  eighth  article  shall  continue  in  force  five 
years  after  the  ratification,  and  afterwards  until  either  of  the 
parties  shall  signify  a  wish  to  terminate  it. 

In  carrying  out  the  provisions  of  this  treaty  the  squadrons 
Practice  under  °^  *ne  two  nations  have  acted  in  concert  a  good 
part  of  the  time  since  1842,  and  with  considerable 
success.  There  are,  however,  serious  difficulties  in  the  way  of 
putting  an  end  to  the  slave-trade  under  this  arrangement.  The 
United  States  admit  no  right  of  search  of  vessels  sustaining 
their  national  character.  If,  then,  a  British  cruiser  boards  a 
vessel  of  the  United  States  whose  papers  are  right,  no  search 
can  be  made,  notwithstanding  the  most  flagrant  suspicion. 
Should  the  boarded  vessel,  on  the  other  hand,  prove  to  be  con 
cerned  in  a  lawful  traffic,  the  cruiser  is  responsible  for  the 
damage  of  the  detention.  Unless,  then,  ships  of  the  two 
nations  u  hunt  in  couples,"  or  officers  of  one  accompany  the 
ships  of  the  other,  with  authority  to  superintend  the  visit,  the 
trade  cannot  wholly  be  prevented.  Or  rather  such  entire  pre 
vention  will  be  impossible  until  the  coast  of  Africa  shall  be 
skirted  with  Christian  colonies,  until  its  interior  be  stimulated 
into  an  industry  which  shall  create  a  demand  for  labor  at  home, 
and  until  the  slave-trade  shall  become  piracy  by  the  voice  of 
all  nations. 

§200. 

A  question  has  arisen  between  the  government  of  the  United 
what  does  the  States  and  that  of  Great  Britain  as  to  the  true 
mean  ?  *  notion  of  the  right  of  search  ?  Is  there  any  differ 

ence  between  the  right  of  visitation  so  called,  and  the  right  of 
search, — between  the  right  to  ascertain  by  an  inspection  of  the 
ship's  papers  that  she  has  the  nationality  which  she  claims,  and 
the  subsequent  right  of  inspecting  the  vessel  and  cargo,  for  the 
purpose  of  ascertaining  whether  she  has  certain  kinds  of  mer 
chandise,  as  slaves  for  instance,  on  board,  or  whether  her  pa 
pers  are  fraudulent  ?  The  English  doctrine  touching  this  point 
is  expressed  by  Lord  Aberdeen  in  a  note  addressed  to  our  rain- 


§200  BELLIGERENTS    AND    NEUTRALS.  339 

ister  in  London,  of  which  the  following  words  are  a  part :  "  The 
right  of  search,  except  when  specially  conceded  by  treaty,  is  a 
purely  belligerent  right,  and  can  have  no  existence  on  the  high 
seas  during  peace.  The  undersigned  apprehends,  however, 
that  the  right  of  search  is  not  confined  to  the  verification  of  the 
nationality  of  the  vessel,  but  also  extends  to  the  objects  of  the 
voyage  and  the  nature  of  the  cargo.  The  sole  purpose  of  the 
British  cruisers  is  to  ascertain  whether  the  vessels  they  meet 
with  are  really  American  or  not.  The  right  asserted  has  in 
truth  no  resemblance  to  the  right  of  search,  either  in  principle 
or  in  practice.  It  is  simply  a  right  to  satisfy  the  party,  who 
has  a  legitimate  interest  in  knowing  the  truth,  that  the  vessel 
actually  is  what  her  colors  announce.  This  right  we  concede 
as  freely  as  we  exercise.  The  British  cruisers  are  not  instruct 
ed  to  detain  American  vessels  under  any  circumstances  what 
ever  :  on  the  contrary  they  are  ordered  to  abstain  from  all  in 
terference  with  them,  be  they  slavers  or  otherwise.  But  where 
reasonable  suspicion  exists  that  the  American  flag  has  been 
abused  for  the  purpose  of  covering  the  vessel  of  another  nation, 
it  would  appear  scarcely  credible  .  .  .  that  the  government  of 
the  United  States,  which  has  stigmatized  and  abolished  the 
trade  itself,  should  object  to  the  adoption  of  such  means  as  are 
indispensably  necessary  for  ascertaining  the  truth." 

A  little  later  we  find  the  English  envoy  at  Washington  in 
a  communication  from  his  government  giving  notice  that  Great 
Britain  still  "  maintained  and  would  exercise,  if  necessary,  its 
own  right  to  ascertain  the  genuineness  of  any  flag  which  a  sus 
pected  vessel  might  bear ;  that  if,  in  the  exercise  of  this  right, 
either  from  involuntary  error,  or  in  spite  of  every  precaution, 
loss  or  injury  should  be  sustained,  a  prompt  reparation  would 
be  offered ;  but  that  it  should  entertain  for  a  single  instant  the 
notion  of  abandoning  the  right  itself  would  be  quite  impossible." 

The  government  of  the  United  States,  on  the  other  hand, 
has  maintained  that  there  is  no  right  of  visiting  Doctrine  he]d  by 
a  vessel,  for  the  purpose  of  ascertaining  its  nation-  tho  United  Statee- 
ality  and  distinct  from  the  right  of  search,  known  to  the  law 
of  nations ;  that  the  right  to  visit,  in  order  to  be  effectual,  must 


-     340  OF    THE    RELATIONS    BETWEEN  §  200 

in  the  end  include  search ;  that  the  right  differs  in  no  respect 
from  the  belligerent  right  of  search  ;  and  that  every  case  of  de 
tention  of  an  American  vessel  for  this  purpose  is  a  wrong,  call 
ing  for  reparation.  These  views  are  set  forth  by  Mr.  Webster, 
then  Secretary  of  State,  in  a  letter  to  the  ambassador  of  the 
United  States  at  London.  "  ~No  such  recognition,"  he  there 
says  \i.  e.  of  the  right  claimed  by  England],  "  has  presented 
itself  to  the  United  States ;  but,  on  the  contrary,  it  understands 
that  public  writers,  courts  of  law,  and  solemn  treaties,  have  for 
centuries  used  the  word  '  visit '  and  f  search '  in  the  same  sense. 
What  Great  Britain  and  the  United  States  mean  by  the  £  right 
of  search,'  in  its  broadest  sense,  is  called  by  continental  writers 
and  jurists  by  no  other  name  than  the  '  right  of  visit.'  Nor 
can  the  government  of  the  United  States  agree  that  the  term 
•  right '  is  justly  applied  to  such  exercise  of  power  as  the  British 
government  thinks  it  indispensable  to  maintain  in  certain 
cases."  Again,  "  there  is  no  right  to  visit  in  time  of  peace,  ex 
cept  in  the  execution  of  revenue  laws  or  other  municipal  regu 
lations,  in  which  cases  the  right  is  usually  exercised  near  the 
coast,  or  within  a  marine  league,  or  where  the  vessel  is  justly 
suspected  of  violating  the  law  of  nations  by  piratical  aggres 
sion  ;  but  whenever  exercised  it  is  the  right  of  search. 

To  Lord  Aberdeen's  declaration,  that  reparation  would  be 
made  for  injury  sustained  through  the  exercise  of  this  right  of 
visit,  it  is  replied  that,  "  if  injury  be  produced  by  the  exercise 
of  a  right,  it  would  seem  strange  that  it  should  be  repaired  as 
if  it  had  been  the  effect  of  a  wrongful  act.  The  general  rule 
of  law  certainly  is,  that  in  the  proper  and  prudent  exercise  of 
his  own  rights,  no  one  is  answerable  for  undesigned  injury.  It 
may  be  said  that  the  right  is  a  qualified  right,  that  is,  a  right 
to  do  certain  acts  of  force  at  the  risk  of  turning  out  to  be  wrong 
doers,  and  of  being  made  answerable  for  all  damages.  But 
such  an  argument  would  prove  every  trespass  to  be  matter  of 
right,  subject  only  to  just  responsibility.  It  is  as  if  a  civil 
officer  on  land  have  process  against  one  individual  and  through 
mistake  arrest  another ;  this  arrest  is  wholly  tortious.  ]STo  one 
would  think  of  saying  it  was  done  under  any  lawful  exercise 


§  200  BELLIGERENTS    AND    NEUTRALS. 

of  authority,  or  that  it  was  anything  but  a  mere  trespass,  though 
an  unintentional  trespass.  The  municipal  law  does  not  under 
take  to  lay  down  beforehand  any  rule  for  the  government  of  such 
cases ;  and  as  little  does  the  public  law  of  the  world  lay  down 
beforehand  any  rule  for  the  government  of  cases  of  involuntary 
trespasses,  detentions  and  injuries  at  sea,  except  that  in  both 
cases,  law  and  reason  make  a  distinction  between  injuries  com 
mitted  through  mistake,  and  injuries  committed  by  design,  the 
former  being  entitled  to  fair  and  just  compensation,  the  latter 
demanding  exemplary  damages,  and  sometimes  personal  pun 
ishment."  In  another  passage  the  inquiry  is  made,  "  By  what 
means  is  the  ascertainment  of  the  nationality  of  a  vessel  to  be 
effected  ?  Must  it  lie  to  ?  Or,  if  it  pursue  its  voyage,  may  force 
be  used  ?  Or,  if  it  resist  force  and  is  captured,  must  it  not  be 
condemned  as  resisting  a  right,  which  cannot  exist  without  a 
corresponding  obligation  imposed  on  the  other  party  ?  Thus, 
it  appears  that  the  right  exercised  in  peace  differs  nothing,  as 
to  the  means  of  enforcing  it  which  must  be  adopted,  from  the 
right  of  search  exercised  in  war,  which  the  English  government 
disclaims  the  use  of.  The  government  of  the  United  States 
admits  that  its  flag  can  give  no  immunity  to  pirates,  nor  to  any 
other  than  regularly  documented  vessels,  and  it  was  upon  this 
view  of  the  whole  case,  that  it  cheerfully  assumed  the  duties 
of  the  treaty  of  Washington."* 

This  discussion  took  place  between  1841  and  1843.     Since 
then,  in   1858,  the  British   government  having  New  discussion 
stationed  cruisers  near  Cuba,  for  the  purpose  of  J^^fis^ 
preventing  the  slave-trade  with  that  island,  certain  1859' 
American  vessels  were  visited  on  suspicion,  and  loud  com 
plaints  arose.     The  Senate  of  the  United  States, 'thereupon, 
passed  the  following  resolution :  "  that  American  vessels  on  the 
high  seas  in  time  of  peace,  bearing  the  American  flag,  remain 
under  the  jurisdiction  of  the  country  to  which  they  belong ; 
and,  therefore,  any  visitation,  molestation,  or  detention  of  such 


*  Comp.  Wheaton's  Hist.  pp.  585-718  (from  which  we  have  freely  drawn),  and 
Webster's  Works,  Vol.  VI.,  p.  329,  et  seq. 


342  OF    THE    RELATIONS    BETWEEN  §  200 

vessels,  by  force,  or  by  the  exhibition  of  force  on  the  part 
of  a  foreign  power,  is  in  derogation  of  the  sovereignty  of  the 
United  States." 

From  the  explanations  which  have  since  taken  place,  it 
does  not  appear  that  the  British  government  was  disposed  to 
deny  the  right  which  this  resolution  implies.  Knowing  or 
believing  slavers  to  have  an  American  nationality,  it  has,  at 
least  since  1842,  disclaimed  the  right  to  detain  them,  and  find 
ing  them  to  be  American,  upon  examination  of  their  papers, 
it  admits  that  it  cannot  search  them  without  a  violation  of 
international  law.  What,  then,  is  the  point  upon  which  the 
two  governments  differ.  Is  it  that  the  flag  shall  always  pro 
tect  the  vessel  which  carries  it  ?  We  do  not  understand  our 
government  to  take  this  almost  absurd  position,  which  would 
prevent,  in  fact,  the  execution  of  the  treaties  establishing  the 
right  of  mutual  search  into  which  England  has  entered  with 
Spain  and  Portugal,  and  would  render  nugatory  all  attempts 
to  put  down  the  slave-trade.  Is  it  that  if  an  American  vessel 
is  detained  by  mistake,  no  reparation  shall  ever  be  paid  ?  But 
the  contrary  has  been  asserted  by  Lord  Aberdeen  and  others 
who  have  spoken  for  the  British  government.  The  only  ques 
tions  between  the  two  powers  ought  to  be  these  :  in  ascertain 
ing  the  nationality  of  a  vessel  under  suspicion,  what  procedure 
shall  be  prescribed  to  the  officer  in  charge  of  the  matter,  and 
if  injury  is  done  by  the  detention,  in  what  way  shall  it  be  dis 
covered  and  compensated  ?  The  English  and  French  govern 
ments  have  agreed  on  a  code  of  instructions  relating  to  this 
subject  which  are  identical,  and  that  code  has  been  submitted 
to  our  government  for  its  adoption.* 

So  stood  the  discussion  between  the  two  governments  on 
Newnrran.se-  t^ie  ^g^t  °^  searcn  down  to  1860,  when  the  first 
merits  in  1862.  edition  of  this  work  was  published.  A  new  face 
was  put  on  affairs  by  the  treaty  signed  at  Washington,  April 
7,  1862,  and  ratified  at  London,  May  25,  by  which  the 
two  powers  conceded  the  mutual  right  of  search  to  public 

*  Speech  of  Lord  Malmesbury,  of  Feb.  14,  1859. 


§  201  BELLIGERENTS    AND    NEUTRALS.  343 

vessels  specially  provided  with  instructions  for  that  purpose, 
which  are  authorized  to  visit  each  other's  merchant  vessels, 
known  or  suspected  of  trading  in  slaves,  but  only  within  200 
miles  of  the  African  coast  south  of  parallel  32,  and  within  30 
leagues  of  Cuba.  The  searching  officers  are  required  to  show 
their  instructions,  and  give  certificates  of  their  rank,  etc.,  to  the 
visited  vessel.  Losses  by  arbitrary  and  illegal  detention  are  to 
be  made  good,  etc.  Three  mixed  courts  without  appeal  are 
established, — at  New  York,  Sierra  Leone,  and  the  Cape  of  Good 
Hope.  Certain  indications  of  the  character  of  vessels  searched 
are  mentioned  as  being  presumptive  evidence  of  intention  to 
engage  in  the  slave-trade,  and  as  justifying  detention,  and  pre 
cluding  damages,  for  it.  Vessels  condemned  by  the  courts 
above-mentioned  are  to  be  broken  up,  and  sold  unless  used  for 
public  purposes.  May  this  treaty  prove  an  effectual  bar  to  this 
wicked  traffic  in  future. 

§201. 

Viewing  this  subject  now  for  a  moment,  not  in  the  light  oi 
positive  law,  but  in  that  of  justice,  we  must  admit 
the  distinction  between  search  which  ends  with  ^£1?$**™ 
ascertaining  a  vessel's  nationality,  and  searcji  £atimeoVpeace7 
which  goes  further,  to  be  entirely  reasonable,  and 
deserving  of  recognition  by  the  law  of  nations.  There  is  no 
middle  ground  between  the  flags'  being  decisive  proof  of  na 
tionality  and  examining  upon  suspicion.  Every  nation  has,  in 
peace,  the  right  of  visiting  its  own  vessels  on  the  high  seas, 
and  it  may  be  highly  important  so  to  do.  By  the  nature  of 
the  case,  mistakes  must  sometimes  be  made  in  attempting  to 
exercise  such  a  right,  and  as  soon  as  they  are  discovered  search 
is  to  be  broken  off.  Suppose,  again,  that  by  special  conven 
tion,  two  states  were  to  give  up,  reciprocally,  the  right  of  search 
in  war ;  and  one  of  them  were  to  be  at  war  with  some  other 
country.  Is  it  not  evident  that  either  such  belligerent  must 
abandon  the  right  of  search  altogether,  or  ascertain  for  itself 
by  inspection  of  papers,  that  particular  vessels  belonged  to  the 
country  with  which  its  agreement  to  abstain  from  search  exist- 


34:4  OF    THE    RELATIONS    BETWEEN  §  202 

ed  ?  If  an  injury  grows  out  of  detention,  so  may  it  grow  out 
of  detention  on  suspicion  of  piracy,  where  the  examination  may 
proceed  far  beyond  the  point  of  ascertaining  the  nationality  of 
the  vessel.  If  now  a  nation  or  its  cruisers  may  be  called  to 
account  for  injuring  the  innocent  while  doing  a  lawful  work, 
and  if  equitable  claims  for  damage  arising  from  detention  are 
allowed,  it  is  not  easy  to  see  what  harm  can  spring  from  a 
police  of  the  seas  thus  limited. 

§202. 

"  England  asserts  the  right  of  impressing  British  subjects 
in  time  of  war  out  of  neutral  ships,  and  of  decid- 

TUghts  to  search  -,       ,  .    .    .  /r,  ,  -. 

for  her  seamen  on  ing  by  ner  visiting  omcers,  who  among;  the  crews 

neutral  ships  *          i  i          ,      ,.  -r>    •••  i_         i-  OT_ 

claimed  by  Great  oi  such  merchant  ships  are  JDritisn  subjects,  bne 
asserts  this  as  a  legal  prerogative  of  the  crown ; 
which  prerogative  is  alleged  to  be  founded  on  the  English  law 
of  perpetual  and  indissoluble  allegiance  of  the  subject,  and  his 
obligation  under  all  circumstances,  and  for  his  whole  life,  to 
render  military  service  to  the  crown  whenever  required."  * 

The  exercise  of  this  assumed  right  has  formerly  been  the 
source  of  more  embittered  feeling  among  the  inhabitants  of  the 
United  States  towards  Great  Britain,  than  any  or  all  other 
causes.  At  different  times  since  the  French  revolution,  and 
especially  before  the  war  of  1812,  attempts  were  made  to  re 
move  by  negotiation  this  ground  of  vexation  and  animosity. 
In  1803,  a  convention  having  this  in  view,  came  to  the  point 
of  signature,  but  was  broken  off,  because  the  British  govern 
ment  insisted  that  it  should  not  apply  to  the  "  narrow  seas " 
near  the  British  islands.  The  war  of  1812,  it  is  well  known, 
was  justified  on  this  pretext  after  the  orders  in  council  had 
been  rescinded.  The  claim  was  not  alluded  to  in  the  treaty 
of  Ghent,  nor  has  Great  Britain  since  abandoned  it.  The 
exercise  of  this  right  of  search  was  peculiarly  galling  and 
severe,  because  mistakes  might  arise,  or  be  claimed  to  arise, 
from  similarity  of  names  ;  and  because  emigrant  sailors,  whose 
families  and  hopes  were  on  this  side  of  the  w^ater,  might  be 

*  Mr.  Webster's  letter  to  Lord  Ashburton,  of  Aug.  1842. 


§  202  BELLIGERENTS    AND    NEUTRALS.  345 

dragged  away  from  the  vessel  in  which  they  had  shipped,  and 
in  which  they  would  soon  return  to  their  homes. 

The  question  of  the  indefeasibleness  of  the  subjects'  allegi 
ance,  is  by  no  means  closely  connected  with  this  so-called  right. 
Admit  the  doctrine  of  indissoluble  allegiance,  this  right  will 
not  follow.  Reject  it,  and  still  it  might  be  true  that  England 
might  impress  her  subjects  not  naturalized  in  this  country,  if 
found  on  our  vessels.  But  the  right  must  be  pronounced. to 
have  no  foundation.  A  belligerent  cruiser  has  no  right  to 
search  a  neutral  on  the  high  sea  for  any  reason  which  does  not 
involve  the  neutral's  violation  of  his  neutrality,  i.  e.  his  at 
tempt  to  aid  one  of  the  parties  at  war.  For  every  other  pur 
pose  the  ship  is  territory,  so  far  forth,  that  it  is  under  its  terri 
torial  law,  and  n*>  one  on  board  can  be  invaded  more  than 
another.  The  laws  of  the  land  to  which  a  vessel  belongs, 
govern  on  the  high  seas,  unless  international  law  interferes. 
Is  it,  then,  against  the  law  of  nations,  is  it  even  a  wrong  done 
to  a  country,  if  a  sailor  there  born  is  taken  on  board  a  vessel 
as  one  of  its  crew  ?  This  will  not  be  pretended.  What,  then, 
is  to  be  thought  of  a  right  which  invades  the  deck  of  a  neutral 
vessel  with  force,  in  order  to  prevent  that  which  a  neutral  may 
lawfully  do,  and  which,,  it  may  be,  the  sailor  in  question  might 
lawfully  do,  until  this  right  was  enforced  against  him,  and 
which  he  was  bound  to  do  by  contract  ?  Moreover,  it  is  not 
easy  to  see,  if  the  right  exists,  why  it  is  confined  to  a  time  of 
war,  since  it  has  nothing  to  do  with  the  relafions  between  the 
neutral  and  the  enemy.  It  is  really,  then,  a  perpetual  and 
universal  right,  if  a  right  at  all,  and  as  legitimate  on  land  as 
on  the  sea. 

It  is  the  recollection  of  the  arrogance  with  which  England, 
as  the  mistress  of  the  seas,  attempted  to  enforce  this  right,  that 
has  obstructed  her  in  all  effective  arrangements  with  the 
United  States  for  suppressing  the  slave-trade.  Had  this  un 
happy  wound  not  been  opened  years  since,  it  is  not  unlikely 
that  her  benevolent  purposes  towards  Africa,  would  have  found 
more  earnest  co-operation,  and  have  borne  full  fruit.* 

*  Comp.  Mr.  Webster's  admirable  letter  to  Lord  Ashburton,  of  Aug.  8,  1842, 


CONCLUSION. 

DEFECTS,  SANCTIONS,  PEOGEESS,  AND  PEOSPECTS  OF  INTEENATIONAL 

LAW. 

§203. 

INTEENATIONAL  LAW,  as  we  have  viewed  it,  is  a  system  of 
rules,  adopted  by  the  free  choice  of  certain  nations  for  the 
purpose  of  governing  their  intercourse  with  each  other,  and  not 
inconsistent  with  the  principles  of  natural*  justice.  It  has 
grown  up  by  degrees,  and  has  been  submitted  during  its  progress 
to  sundry  modifications.  It  is  the  most  voluntary  of  all  codes, 
but  in  other  respects  shares  the  character  of  national  law.  We 
propose,  in  this  closing  chapter,  to  consider  briefly  its  defects, 
its  sanctions,  its  progress  hitherto,  and  its  prospects  for  the 
future. 

The  principal  deficiencies  of  international  law  grow  out  of 
i  Defects  of  ^s  voluntary  nature,  and  its  being  a  law  for  the 
international  law.  co^u^  of  perfectly  sovereign  independent  bodies. 
Hence  its  slow  progress,  since  it  takes  time  for  modifications 
or  improvement^of  it  to  pass  from  one  nation  to  another;  and 
hence,  also,  in  part,  the  different  views  of  it  taken  by  different 
nations,  some  of  which  are  in  advance  of  their  age,  in  a  sense 
of  justice  or  of  true  international  policy.  But  the  principal 
defect  arising  from  this  source  is  the  want  of  an 
im  y'  authoritative  exponent  of  its  principles.  When 
individuals  differ  in  regard  to  their  rights,  the  law  as  inter 
preted  by  the  courts  decides  at  last  between  them.  But  no 
nation  can  set  up  its  opinion  on  a  doubtful  question  of  interna 
tional  law  as  a  rule  for  another.  ISTo  text-writer  has  such 

given  by  Wheaton  in  his  History,  pp.  737-746,  and  in  Webster's  Works,  Vol.  VI., 
p.  318. 


§  204  DEFECTS,    ETC.,    OF    INTERNATIONAL  LAW.  347 

authority  that  all  will  abide  by  his  judgment,  not  to  say  that 
he  may  need  an  interpreter  himself;  that  new  cases  may  arise 
which  he  has  not  contemplated ;  and  that  part  of  the  law  he 
has  laid  down  may  become  obsolete.  And  thus,  if  nations 
have  differed  on  some  important  question  touching  their  rights, 
they  have  been  prone,  in  the  absence  of  any  sovereign  author 
ity  beyond  themselves,  to  take  the  law  into  their  own  hands, 
— to  commit  their  cause  to  the  sword. 

In  regard,  however,  to  the  question  what  is  actually  inter 
national  law,  there  seems  no  impossibility  that  a  congress  of 
men  learned  in  that  department  should  prepare  a  code,  on 
which  all  Christian  nations  or  the  great  body  of  them  should 
agree.  Such  a  congress  has  appeared  to  many  to  be  highly 
desirable.  That  its  decisions  in  the  shape  of  a  code  should 
introduce  entire  certainty  into  the  science,  or  that  its  own  lan 
guage  would  not  give  rise  to  new  uncertainties,  is  not  to  be 
supposed ;  still  many  questions  as  to  the  rights  of  ambassadors, 
of  neutral  territory,  and  of  war  on  land  and  on  the  sea,  and 
the  like,  could  be  so  far  settled,  that  there  would  be  fewer 
grounds  of  controversy,  fewer  unintended  violations  of  the  law 
between  nations  than  hitherto.  As  for  the  interpretation  of 
such  a  code  in  the  general,  and  when  it  should  bear  on  no 
present  dispute,  it  is  not  unlikely  that  a  uniform  view  would 
grow  up  among  the  /publicists  of  all  nations.  And  if  additions 
or  changes  should  be  found  necessary  in  the  progress  of  human 
society,  they  could  be  made  with  more  ease  than  the  original 
code  itself. 

§204. 

Another  defect  of  existing  international  law  is  the  limited 
number  of  nations  to  which  it  is  applicable.     As     2.  its  narrow 
it  is  a  voluntary  code,  to  which  neither  the  half-  limite- 
civilized  nor  the  barbarian  parts  of  the  world  have  given  their 
assent,  the  Christian  states  who  make  it  a  law  between  them 
selves  are  in  danger  of  acting  as  if  no  rules  of  justice  bound 
them  beyond  their  own  circle,  and  as  if  nations  which  refused 
to  abid.e  by  their  rules'  of  intercourse  in  any  respect  were  to  be 


34:8  DEFECTS,    PROGRESS,    AND    PROSPECTS  §  205 

treated  as  enemies.  Formerly  barbarous  tribes  were  conquered 
under  grant  from  the  Pope  to  make  Christians  of  tbem.  Now 
great  nations  do  not  scruple  to  seize  on  islands  or  coasts  with  no 
sufficient  pretext,  or  go  to  war  because  a  nation  of  the  East,  in 
the  exercise  of  its  sovereignty,  declines  to  trade  with  them. 
And  when  war  breaks  out  in  such  cases,  there  is  no  obligation 
acknowledged  to  abide  by  the  ordinary  rules  of  humanity,  or 
scarcely  of  justice.  "When  Constantine  was  stormed,  in  1837, 
by  the  French,  besides  the  ordinary  pillage  of  property  by  the 
troops,  a  scientific  commission  robbed  the  inhabitants  of  all  the 
Arabic  manuscripts  they  could  lay  their  hands  on. 

No  cure  can  be  effectual  for  this  evil,  until  a  deeper  moral 
sense  and  feeling  of  brotherhood  shall  dictate  rules,  humane 
and  just,  by  which  the  vessels  of  civilized  nations  shall  govern 
their  intercourse  with  the  weak  and  the  barbarous  parts  of  the 
world.  Nor  even  then  will  lawless  crews  abstain  from  out 
rages,  which  will  be  avenged  on  the  next  ship,  and  thus  new 
fuel  be  applied  to  kindle  up  the  ferocity  of  savages.  And  for 
every  outrage  there  will  be  a  plea,  which  will  prevail,  because 
the  savages  cannot  tell  their  own  story.  We  have  already  re 
marked  (§  136),  that  rules  of  intercourse  with  such  races  of  men 
cannot  be  conformed  to  our  international  code,  and  that  punish 
ments  must  often  be  summary  with  them,  to  be  understood. 
But  is  justice,  is  humanity,  to  be  thrown  off,  as  being  conven 
tional  ?  Can  there  be  a  doubt  that,  if  all  the  ships  of  Christian 
states  had  dealt  kindly  and  righteously  with  the  islands  of  the 
sea,  long  ago  they  would  have  been  far  more  open  to  Christi 
anity  and  civilization  than  they  are  now. 

§205. 

Another  obvious  defect  of  international  law,  is  its  weakness 
3  NO  umpire  in  ^n  cases  °f  controversy,  arising  from  the  sovereign- 
controversies,  ^y  of  nations,  and  from  the  fact  that  they  have  no 
national  umpire  to  whom,  in  entire  confidence,  they  can  refer 
their  disputes.  It  has,  indeed,  often  happened,  that  a  point  of 
controversy  has  been  referred  to  an  arbitrator  chosen  for  the 
occasion,  and  that  thus  wars  have  been  prevented.  But  there 


§  206  OF    INTERNATIONAL    LAW.  34-9 

seem  to  be  difficulties  in  such  a  course,  owing  either  to  the  ar 
bitrator's  imperfect  acquaintance  with  the  subject-matter  refer 
red  to  him,  or  to  his  inclination  to  "split  the  difference," 
whether  through  a  desire  to  stand  well  with  both  parties,  or 
through  his  inability  to  come  to  a  sure  decision. 

It  has  been  urged  with  great  zeal  by  benevolent  persons, 
anxious  to  put  an  end  to  war,  that  a  congress  of  A  congrega  to  set. 
nations, — an  international  court, — can  and  ought  tle  disPute3- 
to  be  instituted,  to  which  all  controversies  should  be  submitted, 
and  whose  decisions  would  be,  by  the  pledged  word  of  the  par 
ties  represented,  final.  There  are  great  difficulties  to  be  over 
come,  before  such  a  court,  with  deputies  from  great  and  small 
states,  under  various  forms  of  government,  could  be  constituted 
with  the  requisite  powers ;  and  probably  others  no  less  formi 
dable  would  attend  its  working,  and  the  execution, — by  force  if 
necessary, — of  its  decisions.  If  such  a  court  or  congress  could 
be  created,  we  should  hail  the  event  as  a  sign  of  the  peaceful 
spirit  which  was  abroad,  and  which  would  give  the  body  very 
little  to  do. 

§206. 

A  plan  to  prevent  war  was  proposed  by  the  Abbe  St.  Pierre, 
in  1729,  in  his  "  Abrege  du  projet  de  paix  perpe-  Projectsofpeace 
tuelle,"  of  which,  as  well  as  of  other  similar  plans,  J^p"^^!18' 
an  extended  account  is  given  by  Dr.  Wheaton,  in 
his  history  of  the  law  of  nations.*  St.  Pierre  contemplated  a 
perpetual  alliance,  or  league,  of  which  the  states  of  Europe 
should  be  members,  having  in  all,  either  singly  or  in  groups, 
twenty  votes.  The  allies  should  renounce  the  right  of  war,  and 
submit  their  differences  to  the  arbitration  of  the  general  assem 
bly  of  the  league,  whose  decision,  if  it  carried  three  fourths  of 
the  votes,  should  be  final.  If  one  of  the  allies  should  refuse  to 
abide  by  such  decision,  or  make  treaties  in  contravention  of  it, 

*  For  St.  Pierre's,  comp.  Part  2,  §  17 ;  for  Bentham's,  Part  3,  §  21 ;  for  Kant's, 
Part  4,  §§  36,  37.  Comp.  also  Kant,  "  zum  ewigen  Frieden,"  in  his  works,  vol.  5, 
pp.  411-466  (ed.  Leipz.  1838);  and  Ladd,  in  Prize  Essays  on  a  Congress  of  Nations, 
pp.  509-638.  (Boston,  1840.) 


350  DEFECTS,    PROGRESS,    AND    PROSPECTS  §  206 

or  make  preparations  for  war,  the  allies  should  arm  against  the 
refractory  member  with  the  view  of  reducing  it  to  obedience. 
The  representatives  of  the  league  were  to  be  empowered  to 
pass,  by  a  plurality  of  votes,  all  laws  necessary  to  carry  the  ob 
jects  of  the  alliance  into  effect,  but  entire  unanimity  of  the 
allies  was  required  for  changes  in  the  fundamental  articles  of 
their  confederation.  •  • 

About  the  year  1789,  and  just  before  the  great  revolution- 
2  jerem  Ben-  aiT  outburst  in  Europe,  Jeremy  Bentham  sketch- 
tham's.  e(j  a  p]an  of  a  general  congress,  which  was  long 

afterwards  published.  The  nations  were  first  to  be  led  to  re 
duce  and  fix  their  military  establishments  in  some  fair  ratio, 
and  also  to  abandon  their  colonies,  for  which  so  much  blood 
had  been  shed.  Then  a  congress  was  to  be  established,  con 
sisting  of  two  deputies  from  each  state,  the  agency  of  which 
should  consist  in  reporting  and  circulating  its  decrees,  and  in 
placing  refractory  states  under  the  ban  of  Europe.  Bentham 
was  willing  that  a  fixed  contingent  should  be  furnished  by  the 
several  states  for  the  purpose  of  enforcing  the  decrees  of  the 
court,  but  thought  that  public  opinion  and  a  free  press  would 
prevent  the  necessity  of  such  an  extreme  measure. 

In  1Y95,  Immaiiuel  Kant  published  a  short  essay  inscribed 
3.  Kant's.  "  zum  ewigen  Frieden," — "  to  perpetual  peace." 

Some  of  his  preliminary  articles  were  the  following :  that  no 
state  should  be  merged  by  inheritance,  exchange,  sale  or  gift 
in  another  state ;  that  standing  armies  should  in  time  cease ; 
that  no  state  debts  should  be  incurred  with  reference  to  exter 
nal  politics ;  that  no  state  should  interfere  with  force  in  the 
affairs  of  another.  Then  follow  the  definitive  articles,  the  first 
of  which  is,  that  every  state  shall  have  a  republican  c^nstitu- 
tion,  or  one  in  which  all  the  citizens  share  in  the  power  of 
making  laws,  and  deciding  on  questions  of  peace  and  war.  The 
next  is,  that  international  law  shall  be  based  upon  a  confeder 
ation  of  free  states ;  and  finally,  there  is  to  be  a  citizenship  of 
the  world,  limited  to  the  notion  of  the  free  access  of  all  men  to, 
and  their  residence  in  any  state  upon  the  earth's  surface.  The 
congress  which  Kant  proposes  is  not  to  be  indissoluble,  but  is 


§  207  OF    INTERNATIONAL    LAW.  351 

to  be  held  and  to  be  dissolved  according  to  the  pleasure  of  the 
members.* 

For  the  advantages  and  the  feasibleness,  according  to  the 
views  of  the  authors,  of  a  general  congress  of  na-  Wm  Ladd,8 
tions,  the  prize  essays  may  be  consulted,  which  e8say- 
were  called  forth  by  premiums  offered  by  friends  of  the  Ameri 
can  Peace  Society,  especially  the  sixth  essay  written  by  Mr. 
"William  Ladd. 

With  regard  to  all  such  plans  for  securing  perpetual  peace, 
we  must  take  into  account  (1.)  the  danger  of  dissolution,  owing 
to  the  separate  interests  and  party-feelings  of  the  members ;  (2.) 
the  danger  that  great  states  would  control  the  congress,  and 
make  it  their  instrument;  (3.)  that  if  the  congress  had  no 
means  of  enforcing  its  decrees,  they  would  not  be  respected, 
and  if  they  had,  a  general  war  would  break  out  instead,  as  it 
might  be,  of  a  particular  one.f 

§207. 

What,  then,  are  the  sanctions  of  international  law  ?  They 
are,  first,  within  each  separate  state  municipal  laws  ganctiong  of  inter. 
confirming  it,  and  making  penal  its  violation.  Such  national  law- 
are  the  laws  of  the  United  States  which  protect  the  persons  of 
ambassadors,  or  prohibit  offences  against  neutral  rights,  and 
the  like.  (Cornp.  §  165.)  Secondly,  the  moral  sentiment  of 
each  and  all  the  states  which  have  consented  to  the  existing 
international  law.  This  is  a  considerable  and  an  increas 
ing  force,  one  which  comes  into  the  .recesses  of  palaces  and 
cabinets ;  and  which  sometimes  speaks  in  threatening  tones 
against  gross  wrongs.  Thirdly,  war.  Great  as  the  evil  of  war 
is,  it  is  not  in  the  existing  condition  of  mankind  the  greatest. 
It  would  have  been  a  greater  evil  for  the  states  of  Europe  to 
have  surrendered  their  independence  to  Napoleon,  than  it  was 
to  recover*  it  by  the  sacrifice  of  untold  treasure  and  countless 

*  Comp.  Wheaton's  Hist.  p.  754,  and  Kant's  Rechtlehre,  §  61,  the  end  of  the 
treatise. 

f  Comp.  Bluntschli,  Staatsr.  II.  18. 


352  DEFECTS,  PROGRESS,  AND  PROSPECTS  §  208 

lives.  Nations  are  reformed  by  the  sobering  influences  of  war. 
Nations  are  exalted  by  contending  in  war  for  something  which 
is  good.  Let  not  this  dread  sanction,  then,  be  thought  to  be 
of  no  use.  "War  often  cures  the  internal  maladies  which  peace 
has  fostered. 

§208. 

But  war  often  for  a  time  exhausts  and  demoralizes,  it  some- 
Actual  progress  ^mes  perpetuates  injustice,  it  is  occasionally  un- 
of  intern,  law.  dertakeii  against  the  clearest  provisions  of  the  law 
of  nations.  Has,  then,  this  law  of  nations,  amid  the  violations 
of  its  code,  on  the  whole  made  progress  ?  To  this  question  a 
negative  answer  can  be  given  only  by  those  who  plant  their 
argument  on  gross  offences  rising  up  here  and  there,  as  we  look 
down  history,  but  who  do  not  enough  take  into  account  the 
general  strain  and  spirit  of  the  age.*  When  the  question  is 
made  to  embrace  a  large  tract  of  time,  and  we  search  for  pro 
gress  between  the  eras  while  the  codes  of  Greece  and  Home 
were  living  ones,  and  the  present  day,  no  one  can  hesitate 
what  answer  to  give  to  it.  But  has  there  been  progress  be 
tween  the  time  of  Grotius  (1625),  or  the  peace  of  Westphalia 
(1648),  and  the  most  modern  times?  An  answer  by  a  very 
competent  authority — Dr.  Wheaton — at  the  close  of  his  history, 
sums  up  the  principal  heads  of  progress  as  follows : — 

"  That  the  pacific  relations  among  nations  have  been  maintained  by  the 
general  establishment  of  permanent  missions,  and  the  general  recognition 
of  the  immunities  of  public  ministers. 

"  Although  the  right  of  intervention  to  preserve  the  balance  of  power, 
or  to  prevent  the  dangers  to  which  one  country  may  be  exposed  by  the 
domestic  transactions  of  another,  has  been  frequently  assumed;  yet  no 
general  rules  have  been  discovered  by  which  the  occasions  which  may 
justify  the  exercise  of  this  right,  or  the  extent  to  which  it  may  be  carried, 
can  be  laid  down ;  and  that  it  remains,  therefore,  an  undefined  and  unde- 
finable  exception  to  the  mutual  independence  of  nations. 

"  The  exclusive  dominion,  claimed  by  certain  powers  over  particular 
seas  has  been  abandoned,  as  an  obsolete  pretension  of  barbarous  times ;  the 

*  Comp.  for  a  gloomy  view  of  the  progress  of  international  law  the  article  (refer 
red  to  in  §  3)  in  the  Edinburgh  Review,  No.  156,  for  April,  1843. 


§  208  OF  INTERNATIONAL  LAW.  353 

general  use  of  the  high  seas,  without  the  limits  of  any  particular  state,  for 
the  purposes  of  navigation,  commerce,  and  fishery,  has  been  conceded ;  and 
the  right  of  search  on  the  ocean  limited  to  periods  of  war,  except  certain 
conventional  arrangements  applicable  to  the  African  slave-trade. 

"  The  navigation  of  the  river  Scheldt,  which  was  closed  by  the  treaty 
of  "Westphalia,  in  favor  of  the  commerce  of  Holland,  has  been  re-opened  to 
all  nations ;  and  the  general  right  to  navigate  the  Rhine,  the  Elbe,  the 
Danube,  and  other  rivers  which  separate  or  pass  through  different  states, 
has  been  recognized  as  a  part  of  the  public  law  of  Europe. 

"  The  colonial  monopoly,  that  fruitful  source  of  wars,  has  nearly  ceased ; 
and  with  it  the  question  as  to  the  right  of  neutrals  to  enjoy  in  war  a  com 
merce  prohibited  in  time  of  peace. 

"The  African  slave-trade  has  been  condemned  by  the  opinion  of  all 
Christian  nations,  and  prohibited  by  their  separate  laws,  or  by  mutual 
treaty-stipulations  between  them. 

"  The  practices  of  war  between  civilized  nations  have  been  sensibly 
mitigated,  and  a  comparison  of  the  present  modes  of  warfare  with  the  sys 
tem  of  Grotius,  will  show  the  immense  improvement  which  has  taken  place 
in  the  laws  of  war. 

"  Although  there  is  still  some  uncertainty  as.  to  the  rights  of  neutral 
navigation  in  time  of  war,  a  conventional  law  has  been  created  by  treaty, 
which  shows  a  manifest  advance  towards  securing  the  commerce  of  nations 
which  remain  at  peace,  from  interruption  by  those  which  are  engaged  in 
war. 

"  The  sphere,  within  which  the  European  law  of  nations  operates,  has 
been  widely  extended  by  the  unqualified  accession  of  the  new  American 
states ;  by  the  tendency  of  the  Mahommedan  powers  to  adopt  the  public 
law  of  Christendom ;  and  by  the  general  feeling,  even  among  less  civilized 
nations,  that  there  are  rights,  which  they  may  exact  from  others,  and 
consequently  duties  which  they  may  be  required  to  fulfil. 

"  The  law  of  nations,  as  a  science,  has  advanced  with  the  improvements 
in  the  principles  and  language  of  philosophy;  with  our  extended  knowl 
edge  of  the  past  and  present  condition  of  mankind,  resulting  from  deeper 
researches  into  the  obscurer  periods  of  history,  and  the  discovery  of  new 
regions  of  the  globe ;  and  with  the  greater  variety  and  importance  of  the 
questions  to  which  the  practical  application  of  the  system  has  given  rise. 

"  And  lastly,  that  the  law  of  nations,  as  a  system  of  positive  rules  regu 
lating  the  mutual  intercourse  of  nations,  has  improved  with  the  general 
improvement  of  civilization,  of  which  it  is  one  of  the  most  valuable  pro 
ducts." 

To  which  we  may  add,  that  since  Dr.  Wheaton's  history 
was  written,  in  1843, 
23 


354  DEFECTS,  PROGRESS,  AND  PROSPECTS  §  209 

Free  navigation  of  nearly  all  the  rivers  of  the  world,  under 
the  jurisdiction  of  Christian  states,  has  been  conceded  to  those 
who  dwell  on  their  upper  waters,  if  to  no  others  ; 

That  the  Black  Sea  is  open  to  all  merchant  vessels,  and  the 
navigation  through  the  Danish  Straits  freed  from  onerous 
duties, 

And  that  most  of  the  leading  nations  of  the  world  have 
agreed,  that  as  between  them,  free  ships  shall  make  free  goods, 
and  that  privateering  shall  cease. 

§209. 

Is  there  reasonable  expectation  that  this  progress  will  con 
tinue  in  future  times?  This  question  resolves 
itself  into  the  broader  one,  whether  true  civiliza- 


for  the  future.  ,.     .          .       , 

tion  built  on  sound  morality  and  religion  is  des 
tined  to  advance  or  to  decline  ?  If  nations  are  to  grow  in 
moral  enlightenment  ;  if  there  is  to  be  a  faith  that  the  great 
Euler  of  nations  has  put  them  upon  trial,  as  truly  as  individu 
als,  so  that  no  amount  of  power  can  save  from  punishment,  or 
even  from  extinction,  a  nation,  in  which  the  feeling  of  justice 
is  blunted  by  a  long  course  of  sinning  ;  if  opinion  is  destined 
to  circulate  so  freely  through  the  world  that  crimes  committed 
against  other  and  weaker  .states  shall  stamp  disgrace  on  a  na 
tion  through  coming  time,  and  a  sense  of  character  over  the 
world  shall  be  felt  to  be  valuable  ;  if  national  crimes  shall  ap 
pear  to  all  to  be  hurtful  to  their  perpetrators  ;  if,  finally,  closer 
intercourse  shall  bring  the  nations  more  nearly  to  the  same 
standard  of  justice,  then  will  international  law  purify  itself, 
until  it  reaches  the  perfection  of  justice  attainable  by  man,  and 
with  this  that  degree  of  humanity  and  of  renunciation  of  strict 
right  which  is  compatible  with  the  distinct  sovereignty  and 
special  sphere  of  separate  nations.  That  such  advance  will  be 
made  we  believe,  for  we  can  see  no  limit  to  the  influences  of 
the  moral  and  religious  powers  which  the  Author  of  Nature 
and  of  the  Gospel  has  put  into  motion.  And  it  is  probable 
that  the  advance  will  be  more  rapid  than  heretofore,  although 
by  no  means  easy  or  unopposed. 


§210  OF    INTERNATIONAL    LAW.  355 

§210. 

Prom  all  that  has  been  said  it  has  become  apparent  that  the 
study  of  international  law  is  important,  as  an  in- 

x  Importance  of  the 

dex  of  civilization,  and  not  to  the  student  01  law  study  Of  intema- 

tiwiul  law. 

only,  but  to  the  student  of  history.  In  our  land 
especially  it  is  important,  on  more  than  one  account,  that  this 
science  should  do  its  share  in  enlightening  educated  minds. 
One  reason  for  this  lies  in  the  new  inducements  which  we,  as  a 
people,  have  to  swerve  from  national  rectitude.  Formerly  our 
interests  threw  us  on  the  side  of  unrestricted  commerce,  which 
is  the  side  towards  which  justice  inclines,  and  we  lived  far 
within  our  borders  with  scarcely  the  power  to  injure  or  be  in 
jured  except  on  the  ocean.  Now  we  are  running  into  the 
crimes  to  which  strong  nations  are  liable.  Our  diplomatists 
unblushingly  moot  the  question  of  taking  foreign  territory  by 
force  if  it  cannot  be  purchased ;  our  executive  prevents  pirati 
cal  expeditions  against  the  lands  of  neighboring  states  as  feebly 
and  slowly  as  if  it  connived  at  them ;  we  pick  quarrels  to  gain 
conquests ;  and  at  length  after  more  than  half  a  century  of  pub 
lic  condemnation  of  the  slave-trade,  after  being  the  first  to 
brand  it  as  piracy,  we  hear  the  revival  of  the  trade  advocated 
as  a  right,  as  a  necessity.  Is  it1  not  desirable  that  the  sense  of 
justice,  which  seems  fading  out  of  the  national  mind  before 
views  of  political  expediency  or  destiny,  should  be  deepened 
and  made  fast  by  that  study  which  frowns  on  national  crimes  •? 
And,  again,  every  educated  person  ought  to  become  ac 
quainted  with  international  law,  because  he  is  a  responsible 
member  of  the  body  politic ;  because  there  is  danger  that  party 
views  will  make  our  doctrine  in  this  science  fluctuating,  unless 
it  is  upheld  by  large  numbers  of  intelligent  persons ;  and  be 
cause  the  executive,  if  not  controlled,  will  be  tempted  to  assume 
the  province  of  interpreting  international  law  for  us.  As  it 
regards  the  latter  point  it  may  be  said,  that  while  Congress 
has  power  to  define  offences  against  the  laws  of  nations,  and 
thus,  if  any  public  power,  to  pronounce  authoritatively  what 
the  law  of  nations  is,  the  executive  through  the  Secretary 


356  DEFECTS,    ETC.,   OF    INTERNATIONAL    LAW.  §210 

of  State,  in  practice,  gives  the  lead  in  all  international  ques 
tions.  In  this  way  the  Monroe  doctrine  appeared ;  in  this  way 
most  other  positions  have  been  advanced;  and  perhaps  this 
could  not  be  otherwise.  But  we  ought  to  remember  that  the 
supreme  executives  in  Europe  have  amassed  power  by  having 
diplomatic  relations  in  their  hands,  that  thus  the  nation  may 
become  involved  in  war  against  its  will,  and  that  the  preven 
tion  of  evils  must  lie,  if  there  be  any,  with  the  men  who  have 
been  educated  in  the  principles  of  international  justice.* 

I  close  this  treatise  here,  hoping  that  it  may  be  of  some  use 
to  my  native  land,  and  to  young  men  who  may  need  a  guide  in 
the  science  of  which  it  treats. 

*  I  leave  this  §  as  it  stood  in  the  first  ed.,  only  remarking  that  all  our  aggres 
sions  have  been  directly  or  indirectly  owing  to  the  slave  power ;  and  that  with  the 
downfall  of  that  power,  to  which  we  may  look  forward  as  certain,  most  of  our 
temptations  to  injustice,  and  most  of  the  influences  which  have  blunted  the  con 
sciences  of  a  large  part  of  the  nation,  will  be  removed. 


APPENDIX  I. 

A  BKIEF  SELECTION  OF  WOEKS  AND  DOCUMENTS  BEAKING  ON  INTEENA- 

TIONAL  LAW. 


A.    ITS   LlTEEATUBE   AND   HlSTOET. 

Von  Ompteda.  Literatur  des  gesammten,  so  wohl  natiirlichen  als  posi- 
tiven,  Volkerrechts.  Eegensburg  (Ratisbon),  1785,  2  parts,  continued  by 

Von  Kamptz.  Neue  Literatur  des  Volkerrechts  seit  dem  Jahre,  1784. 
Berlin,  1817. 

Robert  v.  Mohl.  Die  Geschichte  und  Literatur  der  Staatswissenschaf- 
ten.  Erlangen,  1855-58,  3  vols.  The  first  volume  includes  a  monography 
on  the  more  recent  literature  of  the  law  of  nations,  containing  valuable 
criticisms. 

The  works  of  Kliiber  and  De  Martens  on  the  law  of  nations,  in  the  edi. 
tion  of  the  former  by  Morstadt  (1851),  and  of  the  latter  by  Verge  (1858), 
contain,  each,  a  selection  of  authorities  and  helps  in  that  science,  and  the 
notes  to  Heffter's  Volkerrecht  contain  copious  references  to  other  writers. 

Rob.  "Ward.  Enquiry  into  the  foundation  and  history  of  the  law  of 
nations  in  Europe  from  the  time  of  the  Greeks  and  Romans  to  the  age  of 
Grotius.  London  (and  Dublin),  1795,  2  vols. 

Henry  Wheaton.  History  of  the  law  of  nations  in  Europe  and  America, 
from  the  earliest  times  to  the  treaty  of  Washington,  1842.  Kew  York, 
1845.  This  work  was  first  written  and  published  in  French,  as  an  answer 
to  a  prize  question  proposed  by  the  French  academy  of  moral  and  political 
sciences,  and  was  considerably  enlarged  when  it  appeared  in  its  English 
dress. 

Ed.  Osenbruggen.  De  jure  pacis  et  belli  Romanorum  liber  singularis. 
Leipzig,  1836. 

K.  Th.  Putter.  Beitrage  zur  Volkerrechtsgeschichte  und  Wissenschaft. 
Leipzig,  1843. 

Miiller-Jochmus.  Geschichte  des  Volkerrechts  im  Alterthum.  Leip 
zig,  1848. 

F.  Laurent.  Histoire  du  droit  des  gens.  Ghent,  1850,  Paris,  1851,  3 
vols.  The  first  volume  treats  of  the  Oriental  nations,  the  second  of  the 
Greeks,  the  third  of  the  Romans.  Comp.  Mohl's  criticism,  u.  s.  I.  374. 


358  APPENDIX    I. 

gk 

B.  DOCUMENTS,  INCLUDING  DIPLOMATIC  HISTORY. 

1.  The  early  maritime  laws. 

These  are  chiefly  contained  in  Pardessus'  Collection  des  lois  maritimes 
anterieures  au  xviii6  siecle.  Paris,  6  vols.,  4to.  1828-1845. 

The  earliest  of  them,  the  laws  of  the  Rhodians,  belongs  to  century  IX. 
To  the  twelfth  century  pertain  the  maritime  laws  contained  in  the  Assises 
des  bourgeois  du  royaume  de  Jerusalemme,  the  Rooles  or  Jugements 
d'Oleron,  and  the  Jugemens  de  Damm,  or  Lois  de  West-Capelle.  Damm 
in  Flanders,  the  port  of  Bruges,  began  to  be  a  town  of  importance  before 
1180.  Its  customs  were  principally  copied  from  those  of  the  isle  of  Oleron.* 
The  Oonsolato  del  mare,  composed  at  Barcelona  in  the  Catalonian  dialect, 
the  most  extensive  and  important  of  the  sea-codes  (comp.  §  173),  was 
collected  in  century  XIV,  and  to  the  same  century  must  be  ascribed  the 
first  laws  of  Wisby  on  the  island  of  Gothland,  and  the  customs  of  Amster 
dam  ;  but  the  sea-code  of  Wisby  belongs  to  the  next  century,  and  according 
to  Hiillmann  (Stadtewesen  des  Mittelalters  I.  182),  was  borrowed  in  part 
from  the  laws  of  Oleron  and  of  Amsterdam.  The  laws  of  the  Hanseatic 
league  are  of  various  dates,  especially  of  the  fourteenth  and  fifteenth  cen 
turies,  and  the  Guidon  de  la  mer  was  composed  in  the  century  next  suc 
ceeding.  The  sea  laws  of  Amalfi,  of  an  earlier  date,  have  been  published 
by  the  Italian  historian,  Troya,  under  the  title,  "  Capitula  et  ordinationes 
maritimas  civitatis  Amalfitana}."  Vienna,  1844. 

2.  Collections  of  Treaties. 

Dumont.  Corps  universel  diplomatique,  etc.  Amsterdam  and  the 
Hague,  1726-1731 ;  8  vols.,  folio,  most  of  them  in  two  parts.  A  supplement 
to  this  work  in  5  vols.  folio  (Ainst.  and  the  Hague,  1739)  contains  a  history 
of  ancient  treaties  by  Barbeyrac  (vol.  1),  a  supplementary  collection  of 
treaties  from  838  to  1738, — Dumont  having  ended  with  1731,  by  Rousset 
(vols.  2-3),  and  a  "  diplomatic  ceremonial  of  the  courts  of  Europe  "  (vols. 
4-5),  by  the  same  author.  Another  supplement  sometimes  accompanying 
Dumont's  work  is  entitled  '  Histoire  des  traites  de  paix  et  autres  negocia- 
tions  du  xviie  siecle,  par  Jean- Yves  de  St.  Priest,  Amst.,  1735,  2  vols.,  fol. 

Wenck  (F.  A.  G.)  Codex  juris  gentium  recentissimi.  Leipzig,  3  vols., 
8vo.,  1781-1795.  This  embraces  a  period  of  thirty-seven  years,  1735-1772, 
and  continues  Dumont's  work. 

De  Martens  (G-.  F.)  Recueil  des  principaux  traites  de  paix,  d'alliance, 
etc.,  depuis  1761,  jusqu'a  nos  jours.  The  Recueil  forms  8  volumes  and 
reaches  down  to  1808,  with  4  volumes  of  supplements.  (2d  ed.  Gotting. 
1817-1835.)  The  nouveau  Recueil  by  the  same  editor,  continued  by  his 
nephew  C.  de  Martens,  by  Saalfeld  and  Murhard,  is  in  16  vols.,  some  of 

*  Warnkonig,  in  his  Flandrische  Staats-und  Rechtsgeschichte,  vol.  I.  Appendix,  No.  XLI 
gives  an  old  text  of  the  laws  of  Damm,  instead  of  the  modern  and  worthless  one  of  Pardessus. 


APPENDIX    I.  359 

which  are  in  several  parts,  so  as  to  make  20  vols.,  and  reaches  from  1808  to 
1839.  The  nouveau  Recueil  general  edited  by  Murhard,  and  from  the  14th 
vol.  by  Samwer,  consists  thus  far  of  17  vols.  The  first  part  of  vol.  17 
reaches  into  1861.  The  nouveaux  Supplemens  by  Murhard  in  3  vols.  supply 
what  is  deficient  down  to  1839.  A  register  in  two  parts,  entitled  Table 
generale  du  Eecueil  des  traites  de  G.  F.  de  Martens,  accompanies  this  work, 
and  covers  the  period  down  to  1839.  (All  the  volumes  have  been  pub 
lished  at  Getting,  in  various  years.) 

Schmauss  (J.  J.)  Corpus  juris  gentium  academicum  (1096-1731), 
Leipz.  1730,  2  vols.,  8vo. 

Leibnitz.  Codex  juris  gentium  diplomaticus,  and  mantissa  codicis  juris 
gentium  diplomatic!.  Containing  not  only  treaties,  but  various  other  docu 
ments.  1693,  1700,  Hanover. 

Ch.  de  Martens  et  J.  de  Cussy.  Eecueil  manuel  et  pratique  des  traites, 
conventions,  etc.  Of  this  selection,  which  is  intended  to  embrace  the 
treaties  on  which  the  relations  of  the  world  since  1760  are  based,  7  vols. 
had  appeared  in  1857. 

Most  civilized  nations  have  special  collections  of  their  own  diplomatic 
transactions.  We  name  a  few  : 

Leonard.  Eecueil  des  traites,  etc.  faits  par  les  rois  de  France,  depuis 
pres  de  trois  siecles.  Paris,  1693,  6  vols.,  4to. 

Eymer.  Archiva  regia  reserata,  sive  foedera,  etc.  inter  reges  Angliae 
et  alios  quosvis  ab  ineunte  sseculo  xiimo.  Lond.  1703-1735,  20  vols.,  fol. 
The  later  volumes  were  prepared  by  Eob.  Sanderson. 

Collection  of  all  the  treaties  of  peace  between  Great  Britain  and  other 
powers  from  1648  till  1771.  Lond.,  1772.  A  second  ed.,  by  Ch.  Jenkin- 
son,  afterwards  earl  of  Liverpool,  in  3  vols.,  carries  them  down  to  1784. 

Chalmers.  A  collection  of  maritime  treaties  of  Great  Britain  and  other 
powers.  Lond.,  1790.  2  vols.,  8vo. 

Ltinig  (J.  C.)  Teutsches  Eeichs-Archiv.  Leipz.,  1710-1722.  24  vols., 
fol. 

Colleccion  de  los  Tratados  de  Paz,  Alianza,  etc.,  by  D.  Jos.  Ant.  de 
Abreu  y  Bertonado.  Madrid,  1740-1752.  12  vols.,  fol. 

Cantillo.     Tratados  de  Paz  y  de  Comercio.     Madrid,  1843. 

Ltinig  (J.  C.)  Codex  Italiss  diplomaticus.  Frankf.  and  Leipz.  1725- 
1735.  4  vols.,  fol. 

Elliott  (J.)  American  diplomatic  Code,  containing  treaties  of  the 
United  States  between  1778-1834.  Washington,  1834. 

The  seventh  volume  of  "Public  Statutes  at  large  of  the  United  States 
of  America,"  edited  by  E.  Peters,  Boston,  1848,  contains,  in  two  parts, 
treaties  with  foreign  states  and  Indian  tribes.  (Vols.  7  and  8,  new  ed.) 

For  other  collections  of  the  treaties  of  particular  states,  Ompteda  and 
the  Appendix  to  Kltiber's  Volkerrecht  may  be  consulted. 


360  APPENDIX    I. 

Kliiber  (J.  L.)  Acten  des  Wiener  Congresses,  in  den  Jahren,  1814  und 
1815.  Erlangen,  1815-1816.  6  vols.,  8vo. 

Ghillany  (F.  G.)  Diplomatisches  Handbuch.  Nordlingen,  1854. 
2  vols.  Also  in  French,  Paris  and  Brussels,  1856.  A  brief  selection,  omit 
ting  a  number  of  the  most  important  treaties. 

3.    Diplomatic  History. 

The  Abbe  de  Mably.  Droit  public  de  TEurope  fonde  sur  les  traites. 
Paris,  1717,  2  vols.  Often  reprinted,  as  in  his  works.  Paris,  1821.  15  vols. 

Koch.  Abreg6  de  1'histoire  des  traites  de  paix,  etc.  Bale,  1796-7. 
4  vols.  Eecast  by  Scholl.  Paris,  1817-18,  in  15  vols. 

Flassan.  Histoire  generale  et  raisonnee  de  la  Diplomatic  Francaise. 
Paris  et  Strasbourg.  Second  ed.  1811.  The  same  author  published  a 
liistory  of  the  Congress  of  Vienna  at  Paris  in  1829. 

Histoire  des  trait^s  de  paix,  etc.  par  le  Comte  de  Garden.  Fourteen  vol 
umes  appeared  before  1859,  and  reach  down  from  the  peace  of  Westphalia 
to  the  peace  of  Paris  in  1814.  This  is  a  revival  of  the  works  of  Koch  and 
Scholl.  See  Mohl's  critique  on  this  work  (u.  s.  p.  345.) 

Spalding  (L.)  The  diplomacy  of  the  United  States.  Being  an  account 
of  the  foreign  relations  of  the  country.  Boston,  1826. 

Mignet.  Negotiations  relatives  a  la  succession  d'Espagne  sous  Louis 
XIV.  Paris,  1835-42.  4  vols.,  4to. 

Other  works  on  the  history  of  diplomacy  are  mentioned  and  character 
ized  by  Von  Mobl  (u.  s.)  Here  also  the  published  correspondence  of 
statesmen  and  ambassadors,  and  the  works  of  the  ablest  historians  are 
great  helps.  Here  is  the  place  to  name  collections  of  documents,  which 
are  often  of  great  value  in  illustrating  the  progress  of  negotiations.  Of  this 
kind  are  the  British  and  foreign  state  papers,  of  which  24  volumes  had  ap 
peared  in  various  years  down  to  1853  ;  the  Parliamentary  papers  of  vari 
ous  years  ;  the  Portfolio,  6  vols.,  1836-37 ;  Diplomatic  correspondence  of 
the  Amer.  revolution,  by  J.  Sparks,  Boston,  1829-30,  12  vols. ;  Diplomatic 
correspondence  of  the  United  States  from  1783  to  1789.  Boston,  1838. 
7  vols. 

C.    TKEA.TISES  ON  THE  LA.W  or  NATIONS  OK  ON  TITLES  OF  IT. 

(a)  Among  the  forerunners  of  Grotius  may  be  named  Oldendorp,  pro 
fessor  at  Marburg.  Isagoge,  seu  elementaria  introductio  juris  naturae, 
gentium  et  chilis.  Cologne,  1539. 

Suarez,  a  learned  Spaniard,  professor  at  Alcala,  Salamanca,  etc.  (1548- 
1617).  De  legibus  et  Deo  legislator!. 

Francis  a  Victoria,  professor  at  Salamanca.  In  his  Eelectiones  theo- 
Iogics9,  published  at  Lyons,  1557,  the  sixth  part  is  entitled  "  de  jure  belli." 
See  Hallam's  introd.  2,  242,  and  Wheaton's  hist.  pp.  35-43. 


APPENDIX   I.  361 

Balthazar  Ayala,  a  Spaniard,  jndge  advocate  of  the  Spanish  army  in  the 
Netherlands.  De  jure  et  officiis  bellicis  et  disciplina  libri  tres.  Antwerp-, 
1597.  Oomp.  Hallam,  2,  244,  and  Wheaton,  u.  s.,  43-49.  The  following 
passage  cited  by  Hallam  from  this  scarce  work,  speaks  well  for  Ayala's 
soundness  of  thinking.  "Bellum  adversus  infideles,  ex  eo  solum  quod  in- 
fideles  sunt,  ne  quidem  auctoritate  imperatoris  vel  summi  pontificis  indici 
potest ;  infiflelitas  enim  non  privat  infideles  dominio  quod  habent  jure  gen 
tium;  nam  non  fidelibus  tantum  rerum  dominia,  sed  omni  rationabili 
creaturte  data  sunt." 

Albericus  Gentilis  (1551-1611),  son  of  an  Italian  who  left  his  country 
upon  embracing  Protestantism.  The  son  became  professor  of  civil  law  at 
Oxford,  in  1582,  and  published  in  the  next  year  a  treatise  de  legationibus — 
the  first  work,  it  is  said,  specially  devoted  to  the  rights  of  ambassadors.  In 
1588  came  out  at  Oxford  his  work  dejure  ~belli,  and  still  another  is  imputed 
to  him  by  Ompteda,  entitled  de  jure  maris.  Of  Gentilis,  Grotius  says,  in 
his  prolegomena,  §38,  "cujus  diligentia  sicut  alios  adjuvari  posse  scio  et 
me  adjutnm  profiteer." 

Benedict  Winckler  (t  1648),  professor  of  law  at  Leipzig,  then  syndic  of 
Lilbeck.  Principiorum  juris  libri  tres.  Leipz.  1615. 

For  the  predecessors  of  Grotius  in  general,  compare  von  Kaltenborn, 
"  die  Yorlaiifer  des  Hugo  Grotius."  Halle,  1848. 

(5.)  Grotius  and  subsequent  writers  to  Moser. 

Hugo  Grotius,  or  de  Groot  (1583-1645.)  After  filling  important  offices 
in  Holland,  Grotius  was  involved  in  the  strife  between  Maurice  of  Orange, 
the  stadtholder,  and  the  grand  pensionary  of  Holland,  Oldenbarneveld. 
When  the  latter  was  beheaded,  Grotius  was  condemned  to  perpetual  im 
prisonment,  with  confiscation  of  his  goods,  in  1619,  but  by  a  successful 
stratagem  of  his  wife  escaped  from  his  confinement  in  1621.  The  next  ten 
years  he  spent  in  learned  leisure  in  France,  and  the  rest  of  his  life  in  the 
service  of  Sweden,  for  a  large  part  of  the  time  as  ambassador  at  the  French 
court.  Grotius  was  equally  eminent  in  classical  scholarship,  biblical  criti 
cism,  the  defence  of  the  truth  of  revelation,  and  the  law  of  nations.  He 
wrote  also  on  history,  law,  and  theology.  During  his  exile  in  France  was 
composed  and  published  his  work  entitled,  "  de  jure  belli  et  pacis  libri  tres, 
in  quibus  jus  natura3  et  gentium,  item  juris  publici  pnecipua  explicantur." 
The  first  edition  was  published  at  Paris,  1625.  Of  the  numberless  editions 
which  have  since  appeared,  are  deserving  of  mention,  1.  That  published  at 
Amsterdam  in  1720,  in  2  vols.,  with  the  notes  of  Grotius,  J.  F.  Gronovius, 
and  of  the  editor,  J.  Barbeyrac,  a  professor  at  Groningen.  2.  II.  Grotii 
etc.  cum  commentariis  Henr.  liberi  baronis  de  Cocceji,  nunc  ad  calcem 
cujusque  capitis  adjectis,  insertis  quoque  observationibus  Sam.  lib.  bar.  de 
Cocceji,  Lausanne,  1751,  5  vols.,  4to.  These  commentaries  had  been  pub- 


362  APPENDIX   I. 

lished  before  by  themselves.  An  abridged  translation  with  notes  was  pub- 
•lished  in  1854,  at  Cambridge  by  Dr.  Whewell.  An  excellent  estimate  of 
the  work  of  Grotius  may  be  found  in  Hartenstein's  "  Darstellung  der  Rechts- 
philosophie  des  H.  Grotius,"  in  the  first  vol.  of  the  transactions  of  the 
philological  and  historical  class  of  the  royal  Saxon  Academy,  Leipz.  1850. 

In  some  editions  of  the  works  of  Grotius,  as  in  Barbeyrac's,  there  is 
annexed  a  short  treatise  of  his  written  in  1609,  and  entitled  mare  liberum. 
In  reply,  the  most  learned  Englishman  of  his  time,  John  Selden,  published 
his  mare  clausum  (1635),  in  vindication  of  the  claims  of  Great  Britain  to 
sovereignty  over  the  seas  which  surround  the  British  islands. 

Zouch  (1590-1660),  professor  of  civil  law  at  Oxford,  and  judge  of  the 
High  Court  of  Admiralty.  Juris  et  judicii  fecialis,  sive  juris  inter  gentes 
et  quaestionum  de  eodem  explicatio.  Oxford,  1650.  Comp.  Wheaton,  Hist, 
pp.  100-103,  and  the  table  of  contents  in  Ompteda,  1,  §  64. 

Samuel  von  Puffendorf,  or  Pufendorf  (1631  or  32-1694),  professor  at 
Heidelberg  of  the  law  of  nature  and  nations  (1661),  then  at  Lund  in  Sweden 
(1670)  historiographer  of  the  king  of  Sweden,  and  one  of  his  council  (1686), 
privy  councillor  of  the  elector  of  Brandenburg  (1688).  His  works  which 
concern  us  are, 

1.  Elementorum  jurisprudent  universalis  libri  duo.    The  Hague,  1660, 
a  work  of  his  youth.     In  this  work,  says  Ompteda,  he  has  the  same  course 
of  thought,  which  appeared  in  his  later  works.     The  natural  jus  gentium 
is  included  in  the  wider  science  of  jus  naturse,  and  requires  no  special 
elaboration.     Besides  this  there  is  no  voluntary  or  positive  law  of  nations, 
since  those  usages  which  nations  extensively  observe  in  regard  to  war  carry 
no  binding  force  with  them,  and  by  their  violation  no  duties,  properly  so 
called,   are  violated.     The  inviolability  of  ambassadors,  and  their  other 
privileges,  are  derived,  partly  from  the  general  law  of  nature,  partly  from 
the  free  act  and  policy  of  the  nation  accepting  the  ambassador,  and  can  be 
refused  at  the  pleasure  of  such  nation  without  injury  to  the  ambassador's 
sovereign. 

2.  De  jure  naturae  et  gentium  libri  octo,  Lund.  1672,  and  often.     This  is 
his  principal  work.     A  French  translation,  with  notes,  by  Barbeyrac,  ap 
peared  at  Amsterdam  in  1706,  and  an  English  translation  in  1717. 

3.  De  officiis  hominis  et  civis.  1673.   This  is  a  mere  extract  from  No.  2; 
Comp.  Wheaton,  88-99.     Leibnitz  said  of  Puffendorf  that  he  was  "  vir 
parum  juris  consultus  et  minime  philosophus."     Too  high  a  rank  is  given 
to  him  by  Sir  James  Mackintosh,  in  his  discourse  on  the  law  of  nature  and 
nations. 

Samuel  Rachel  (1628-1691),  professor  first  at  Helmstadt,  then  at  Kiel. 
De  jure  naturae  et  gentium  dissertationes  duo.  Kiel,  1676.  This  work  is 
remarkable  as  opposing  the  views  of  Puffendorf,  and  as  giving  rise  to  a 
controversy  between  two  sects  of  German  jurists  towards  the  close  of 


APPENDIX    I.  363 

Cent.  XVII.  "The  one  sect,"  says  Dr.  Wheaton  (p.  103),  "adhering  to 
Puffendorf,  denied  the  existence  of  any  other  law  of  nations  than  the  law 
of  nature,  applied  to  independent  communities;  whilst  the  latter  adopted 
the  doctrine  of  Eachel,  founding  the  law  of  nations  upon  the  law  of  nature, 
as  modified  by  usage  and  express  compact."  Kachel's  definition  of  the  law 
of  nations  is  "jus  plurium  liberarum  gentium,  pacto  sive  placito  expresse 
aut  tacite  initum,  quo  utilitatis  gratia  sibi  invicem  obligantur."  For  an 
analysis  of  his  work  see  Ompteda,  §  74. 

J.  W.  Textor,  professor  of  law  at  Altorf,  then  at  Heidelberg  (1637- 
1701).  Synopsis  juris  gentium,  Bale,  1680.  He  embraced  Rachel's  views. 

Christian  Thomasius  (1655-1728),  taught  at  I^ipzig,  then  in  1694  be 
came  a  professor  in  the  new  university  of  Halle.  Fundamenta  juris  nature 
et  gentium.  Halle,  1705,  (1st  Ed.)  A  learned  and  influential  defender  of 
the  views  of  Puffendorf. 

Adam  F.  Glafey  (1682-1754),  keeper  of  the  Archives  at  Dresden. 
Yernunft  und  Volkerrecht.  Frankfurt,  1723. 

Christian  von  Wolf  (1679-1754),  one  of  the  most  noted  philosophers  of 
his  day,  professor  at  Halle  in  1706,  dismissed  from  his  place  by  the  king 
of  Prussia  on  account  of  the  theological  odium  excited  against  him,  then 
at  Marburg,  and  from  1740  onward  again  at  Halle,  being  restored  to  favor. 
He  wrote  a  system  of  the  law  of  nature  in  nine  large  quartos,  of  which  the 
last  volume  treats  of  the  law  of  nations  ;  and  also  in  1749,  when  he  was 
seventy  years  old,  published  his  "jus  gentium  methodo  scientifica  pertrac- 
tatum,  in  quo  jus  gentium  naturale,  ab  eo  quod  voluntarii,  pactitii  et  con- 
suetudinarii  est,  accurate  distinguitur."  Halle,  1749.  Of  this,  his  "institu- 
tiones  juris  nature  et  gentium,"  Halle,  1750,  translated  also  into  German 
and  French,  is  an  abridgment.  "It  is  not  easy,"  says  Wheaton,  "to  infer 
from  the  title  of  the  former  work  precisely  what  the  author  understood  to 
be  comprehended  under  the  term  voluntary  law  of  nations,  as  distinguished 
from  the  conventional  and  customary  law  of  nations.  Grotius  had  used 
the  term  jus  gentium  voluntarium  in  a  comprehensive  sense,  as  including 
all  those  foundations  of  international  law  which  could  not  properly  be  re 
ferred  to  the  law  of  nature,  but  depended  upon  the  voluntary  consent  of  all 
or  many  nations."  In  his  prolegomena,  "Wolf  says  that  "the  voluntary 
law  of  nations  derives  its  force  from  the  presumed  consent  of  nations,  the 
conventional  from  their  express  consent ;  and  the  consuetudinary,  from  their 
tacit  consent."  This  presumed  consent  he  derives  from  the  fiction  of  a 
natural  commonwealth  to  which  all  nations  belong,  governed  by  laws 
which  are  modifications  of  natural  law,  fitted  for  such  a  society  of  nations, 
and  are  obligatory  on  each  member  as  the  laws  of  a  state  are  on  its  indi 
vidual  members.  He  barely  assumes  the  existence  of  such  a  commonwealth 
of  nations,  and  does  not  show  how  or  when  the  nations  of  the  world  be 
came  thus  united.  Wolf,  adds  Wheaton,  supposes  himself  to  differ  from 


364:  APPENDIX   I. 

Grotius  as  to  a  voluntary  law  of  nations,  in  two  particulars.  The  first  is, 
that  Grotius  regards  it  as  a  positive  law,  obligatory  on  account  of  the  gen 
eral  consent  of  the  nations  or  of  certain  nations,  while  Wolf  considers  it  to 
be  a  law  imposed  by  nature,  to  which  no  nation  may  refuse  its  assent. 
The  second,  that  Grotius  confounds  the  voluntary  with  the  customary  law 
of  nations,  whereas  the  former  is  of  universal  obligation,  while  the  latter 
prevails  between  particular  nations,  having  been  established  by  tacit  con 
sent.  (Comp.  Wheaton,  176-183.)  Wolf's  works  have  become  obsolete 
with  his  philosophy,  but  his  materials  have  been  worked  over  by  a  disciple, 

Emmerich  de  Vattel  (1714-1767),  a  Swiss,  who  for  many  years  was  in 
the  service  of  the  Saxon  court,  and  published  at  Leyden,  in  1758,  le  Droit 
des  gens,  ou  principes  de  la  loi  naturelle  appliques  a  la  conduite  des  nations 
et  des  souverains.  This  work,  on  account  of  its  clearness  and  smoothness, 
has  long  been  a  favorite  with  statesmen,  and  has  been  translated  into  the 
principal  languages  of  Europe.  The  best  edition  of  it  is  that  published  at 
Paris  in  1838,  with  notes  by  Pinheiro-Ferreira. 

De  Real.  La  science  du  gouvernement.  Paris,  1754  and  1764.  In  eighjp 
volumes,  the  fifth  of  which  contains  the  law  of  nations. 

J.  G.  Heineccius  (1681-1741),  professor  at  Halle,  etc.  Elementa  juris 
natursa  et  gentium.  Halle,  1738,  translated  into  English,  1742,  by  G.  Turn- 
bull.  He  understands  by  jus  gentium,  says  Ompteda,  the  rights  which  find 
their  application  to  societies  of  every  sort,  and  treats  only  in  a  cursory  way 
of  the  rights  of  nations. — Another  work  of  his  was  a  Dissertation  de  navi- 
bus  ob  mercium  illicitarum  vecturam  commissis.  Halle,  1721  and  1740 . 
also  transl.  into  German  and  Dutch. 

J.  J.  Burlamaqui,  professor  of  law  in  Geneva,  and  member  of  the  coun 
cil  there  (1694-1748.)  Principes  du  droit  naturel.  Geneva,  1747.  Transl. 
also  into  English. 

Thomas  Kutherforth,  professor  at  Cambridge,  archdeacon  of  Essex. 
Institutes  of  natural  law.  London,  1754. 

Cornelius  von  Bynkershoek  (1673-1743),  member  and  president  of  the 
supreme  court  of  Holland.  He  has  written  no  systematic  work,  but  the 
following  dissertations,  contained  in  the  second  volume  of  his  Opera  Omnia 
(Leyden,  1767) — De  dominio  maris  (1702) — De  foro  legatorum  (1721)  and 
Qusestiones  juris  publici  (1737),  place  him  among  the  highest  authorities. 

Charles  Jenkinson,  afterward  Lord  Liverpool.  Discourse  on  the  con 
duct  of  the  government  of  Great  Britain  in  respect  to  neutral  nations,  1757. 
Relates  to  the  '  rule  of  1756,'  so  called.  Comp.  §  185. 

Martin  Hiibner.  De  la  saisie  des  batimens  neutres,  etc.  The  Hague, 
1759,  2  vols.  For  a  critique  on  this  work,  comp.  Wheaton,  Hist.  219-220. 

(c.)  Moser  and  writers  since  his  day.  From  this  time  the  positive  and 
practical  tendency  has  prevailed, — in  some  writers  to  the  neglect  of  the 
principles  of  general  justice. 


APPENDIX    I.  365 

1.     Systematic  WorJcs. 

John  Jacob  Moser  (1701-1786),  professor  at  Tubingen,  then  at  Frankfort- 
on-the-Oder,  founder  in  1749  of  an  academy  for  the  political  instruction  of 
young  nobles,  then  in  the  service  of  the  estates  of  "Wurtemberg,  during 
which  employment  he  was  imprisoned  by  the  Duke  and  kept  in  confine 
ment  five  years.  A  most  voluminous  publicist,  thoroughly  practical,  with 
no  great  depth  or  philosophical  power,  the  father  of  the  positive  method. 
For  an  estimate  of  this  excellent  man,  see  Von  Mohl,  Gesch.  II.  402.  His 
principal  works  are  Yersuch  des  neuesten  Europaischen  Volkerrechts  in 
Friedens-und-Kriegszeiten,  etc.  Frankfurt  am  Mayn,  1777-80,  in  twelve 
parts  ;  Beytrage  zu  dem  neuesten  Europaischen  Volkerrechts  in  Friedens- 
zeiten,  and  the  same  in  Kriegszeiten.  Ttibingen,  1778-1781.  These  two 
works  are  unfinished. 

Giinther  (C.  G.)  Grundriss  eines  Europ.  Volkerrechts,  nach  Vernunft, 
Vertragen,  Herkommen,  etc.  Ratisb.,  1779,  8vo. 

Geo.  Fred,  de  Martens  (1756-1821).  Professor  at  Gottingen,  from  1808 
in  the  service  of  the  king  of  Westphalia,  and  then  in  that  of  Hanover.  Of 
his  numerous  works  two  have  already  been  mentioned.  Another  is  enti 
tled  Precis  du  droit  des  gens  modern^  de  1'Europe,  fond6  sur  les  traites  et 
1'usage,  Gottingue,  1789,  transl.  into  German  by  the  author,  1796,  and  into 
English  by  W.  Cobbett,  Philadelphia,  1795.  The  fourth  edition  in  French 
appeared  at  Paris,  1831,  in  2  vols.,  with  notes  by  Pinheiro-Ferreira,  who 
opposes  the  extreme  positivism  of  De  Martens  and  others.  A  fifth  edition 
in  French,  with  notes  by  Pinheiro-Ferreira  and  Verge,  appeared  in  1855, 
and  has  been  used  for  the  present  work. 

Gerard  de  Eayneval  (1736-1812).  Institution  du  droit  de  la  nature  et 
des  gens,  etc.  Paris,  1803,  in  1  vol.,  1851  in  2  vols. 

Fried.  Saalfeld.  Handbuch  des  positiven  Volkerrechts.   Tubingen,  1833. 

J.  L.  Kluber  (1762-1835),  professor  at  Erlangen,  then  at  Heidelberg. 
Droit  des  gens  moderne  de  1'Europe,  Stuttgart,  1819,  and  in  German  as 
Europaisches  Volkerrecht,  nearly  at  the  same  time.  The  French  work 
was  reprinted  in  1831,  and  the  German,  with  notes  by  Morstadt,  at  SchafF- 
hausen  in  1851.  Comp.  what  Manning  says  of  this  work,  p.  41  of  his  Com 
mentaries.  He  also,  besides  publishing  the  acts  of  the  Congress  of  Vienna, 
wrote  a  work  entitled  Offentliches  Recht  des  deutschen  Bundes  und  der 
Bundesstaaten,  of  which  editions  appeared  in  1817,  1822,  1833. 

Jul.  Schmelzing.  Systematischer  Grundriss  des  praktischen  europ. 
Volkerrechts.  Rudolstadt,  1818-19,  3  vols. 

Theod.  Schmalz  (1760-1831).    Europ.  Volkerrecht,  Berlin,  1817. 

C.  S.  Zacharies  (1769-1843J.  Vierzig  Biicher  vom  Staate.  Revised  ed. 
Heidelberg,  1841,  in  7  vols.  Vol.  5  contains  his  Volkerrecht. 

Jeremy  Bentham  (1749-1832).  In  vol.  8  of  his  works,  published  in 
1839,  occur  several  fragments  on  international  law,  serving  as  an  outline 
of  the  science,  in  which  he  advocates  bringing  it  into  the  form  of  a  code 


366  -  APPENDIX   I. 

and  a  common  congress  for  the  adjustment  of  differences  between  states. 
See  Wheaton's  critique  (hist.  pp.  328-344),  and  comp.  §  206. 

James  Kent  (1763-1847),  Judge  of  the  Supreme  Court  and  Chancellor 
of  the  State  of  New  York,  then  professor  of  law  in  Columbia  College,  city 
of  New  York.  His  nine  lectures  on  the  law  of  nations  form  the  first  part 
of  his  Commentaries  on  American  law,  which  appeared  first  in  1826  and 
following  years,  and  in  repeated  editions  since. 

Henry  Wheaton  (1785-1848),  reporter  of  decisions  of  the  Supreme 
Court  of  the  United  States,  from  1827  for  many  years  representing  the 
United  States  at  the  courts  of  Copenhagen  and  Berlin.  His  elements  of 
international  law  appeared  first  in  1836,  at  London  and  New  York,  in  an 
enlarged  third  edition  in  1846,  and  in  a  sixth  in  1855.  This  is  one  of  the 
standard  works  in  our  language.  Dr.  Wheaton's  definition  of  international 
law  makes  it  to  consist  of  "  those  rules  of  conduct  which  reason  deduces, 
as  consonant  to  justice,  from  the  nature  of  the  society  existing  among 
independent  nations ;  with  such  definitions  and  modifications  as  may  be 
established  by  general  consent."  This  definition  removes  the  science  from 
the  nakedly  positive  ground,  and  gives  full  scope  to  comparisons  between 
the  existing  law  and  the  standard  of  justice. 

"William  Oke  Manning.  Commentaries  on  the  law  of  nations.  London, 
1839.  This  work  is  full  on  certain  topics  connected  with  maritime  war, 
especially  on  the  rights  of  neutrals,  but  omits  other  topics  of  importance, 
as  the  rights  of  ambassadors. 

August  W.  Heffter,  professor  at  Bonn,  and  then  at  Berlin.  Das  Euro- 
paische  Yolkerrecht  der  Gegenwart,  Berlin,  1844,  where  also  the  third 
edition  of  1855  appeared.  This  work  has  higher  authority  in  Germany 
than  any  other  on  the  science  of  which  it  treats. 

Eichard  Wildman  (Recorder  of  Nottingham).  Institutes  of  interna 
tional  law.  London,  1829,  2  vols.. 

Pinheiro-Ferreira.'  Cours  de  droit  public  interne  et  externe.  Paris, 
1830,  2  vols.  The  first  part  of  vol.  2  treats  of  international  law.  A  radi 
cal  writer,  who  exaggerates  the  rights  of  the  individual  and  the  individual 
state. 

J.  M.  de  Pando.  Elementos  del  Derecho  International.  Madrid,  1843, 4to. 

Poison.  Principles  of  the  law  of  nations.  To  which  is  added  diplomacy 
by  Thomas  II.  Home.  2d  ed.  London,  1854. 

Robert  Phillimore,  at  one  time  M.  P.,  Queen's  advocate  in  the  ad 
miralty  court,  judge  of  the  cinque  ports.  Commentaries  upon  International 
Law.  3  vols.,  1854-1857,  reprinted  in  Philadelphia:  a  fourth  volume  on 
private  International  Law  or  Comity  appeared  in  London,  in  1861.  This 
work,  which  I  had  not  the  use  of,  while  preparing  the  first  edition  of  my 
Introduction,  is  the  most  extensive,  thorough  and  learned  work  on  the 
science  in  our  language,  if  not  in  any  language.  Comp.  the  favorable  cri- 


APPENDIX    I.  3(57 

tique  of  Mohl,  I.  398.  It  has  been  his  object, — the  author  says  near  the 
close  of  his  work — "  to  strengthen  or  add  to  the  previously  existing  proof 
that  States,  as  well  as  Individuals  of  which  they  are  the  aggregate,  have  in 
their  collective  capacity,  a  sphere  of  duty  assigned  to  them  by  God.  He 
has  endeavored  to  forward  the  great  argument  that  there  are  International 
rights  and  therefore  International  Laws,  convinced  that  every  work,  how 
ever  humble,  which  tends  to  procure  the  recognition  of  these  laws, — to 
show  by  reason,  by  history,  by  authority,  that  the  interest  and  duty  of 
states  are  eventually  one, — that  the  substitution  of  might  for  right  brings 
misery,  not  only  on  the  oppressed  but  on  the  oppressor — deserves  an  in 
dulgent  reception  from  the  world  to  which  it  is  addressed." 

H.  W.  Halleck,  now  major-general  in  the  service  of  the  United  States. 
International  Law ;  or,  Eules  regulating  the  intercourse  of  states  in  peace 
and  war.  San  Francisco,  1861. 

Travers  Twiss  (Eegius  professor  of  civil  law  at  Oxford).  The  law  of 
nations,  considered  as  independent  political  communities.  Oxford  and 
London,  1863. 

2.  Essays  and  Tracts 
on  separate  titles  of  the  law  of  nations, 
(a.)  On  ambassadors  and  consuls. 

Of  Albericus  Gentilis  and  of  Bynkershoek's  treatise  De  foro  legatorum 
we  have  already  spoken. 

Of  works  before  the  modern  era  we  name  here 

Abraham  Wicquefort  (1598-1682),  L'Ambassadeur  et  ses  .  fonctions. 
Cologne,  1679,  the  Hague,  1680-81.  The  fourth  edition  appeared  at 
Amsterdam  in  1730,  in  two  volumes,  with  Barbeyrac's  notes,  who  .added 
other  pieces  of  Wicquefort's  and  a  translation  of  Bynkershoek's  above- 
named  work.  For  Wicquefort  himself  comp.  Ompteda,  p.  541,  Wheaton'a 
hist.  234-246,  and  §  92.  a.  supra 

Moser  (J.  J.)  Beitrage  zu  dem  neuesten  Europaischen  Gesandschafts- 
recht.  Frankfurt,  1781. 

David  B.  Warden  (consul  of  the  United  States  at  Paris).  On  the 
origin,  nature,  progress  and  influence  of  the  consular  establishments. 
Paris,  1814,  and  in  French,  1815. 

A.  Mirus.     Das  Europ.  Gesandtschaftsrecht.   Leipz.  1847,  2  vols. 

Ch.  de  Martens.  Guide  diplomatique.  Paris,  4th  ed.  1852.  Comp.  §  94 
supra,  note. 

F.  de  Cussy.  Dictionnaire,  ou  manuel-lexique  du  diplomate  et  du  consul. 
Leipz.  1846.  Also  by  the  same  author,  Beglemens  consulaires  des  princi- 
paux  etats  maritimes  de  1'Europe  et  de  PAmerique.  Leipz.  and  Paris,  1851. 

Garden,  le  Oomte  de.  Traite  complet  de  Diplomatic,  ou  theorie  generate 
des  relations  exterieures  des  puissances  de  PEurope.  3  vols.,  Paris,  1833. 


368  APPENDIX    I. 

Alex,  de  Miltitz,  chamberlain  of  the  king  of  Prussia,  formerly  ambass. 
at  Constantinople.  Manuel  des  Consuls.  London  and  Berlin,  1837-1843, 
2  vols.,  the  second  in  two  large  parts.  One  of  the  most  learned  and  ex 
haustive  works  ever  written  on  any  branch  of  the  law  of  nations. 

(6.)  On  private  international  law. 

Joseph  Story,  Judge  in  the  Supreme  Court  of  the  United  States,  pro 
fessor  in  the  law  department  of  Harvard  Univ.  Commentaries  on  the 
conflict  of  laws,  foreign  and  domestic.  Boston,  1834,  and  a  number  of  edi 
tions  since.  Comp.  §  69. 

Foelix.  Traite  du  droit  international  prive.  Paris,  1843.  A  collection 
of  articles  originally  published  in  the  author's  Revue  de  Legislation.  Third 
ed.,  with  notes  by  Dumangeat.  Par.  1856,  2  vols. 

"W.  Burge.  Commentaries  on  colonial  and  foreign  laws,  generally  and 
in  their  conflict  with  one  another  and  with  the  law  of  England.  London, 
1838,  4  vols. 

F.  0.  de  Savigny.  The  eighth  vol.  of  his  system  des  heutigen  romischen 
Kechts.     Berlin,  1849. 

"W.  Schaefiher.  Entwickelung  des  internationalen  Privatrechts.  Frank 
furt,  1841. 

M.  H.  Masse.  The  second  vol.  of  his  droit  commercial  is  devoted  to  this 
subject. 

The  older  writers  may  be  found  enumerated  in  Savigny,  vol.  8,  p.  9, 
and  at  the  end  of  the  work  of  Foelix.  The  more  recent,  down  to  1855, 
are  classified  and  subjected  to  a  criticism  by  Mohl,  I.  441-454. 

(c.)  Property  of  States,  sovereignty  over  seas  and  rivers. 

Eug.  Ortolan.  Des  moyens  d'acqudrir  le  domaine  international,  etc. 
Par.  1851.  Comp.  Mohl,  I.  419. 

B.  D.  H.  Tellgen.  Disputatio  de  jure  in  mare  imprimis  proximum. 
Groningen,  1847". 

Cremer  van  dem  Bergh.  Historia  novarum  legum  de  fluminum  commu- 
nium  navigatione.  Leyden,  1835. 

Van  Hoorn.  Dissertatio  de  navigatione  et  mercatura  in  mari  nigro. 
Amsterdam,  1834. 

(d.)  Maritime  law,  rights  of  neutrals,  capture,  etc. 

K.  J.  Yalin.  Nouveau  commentaire  sur  1'ordonnance  de  la  marine  du 
mois  d'Avril,  1681,  etc.  Rochelle,  1762,  2  vols.,  4to.  Third  ed.,  Paris  and 
Marseilles,  1780.  Also  traite  des  prises,  ou  principes  de  la  jurisprudence 
francoise  concernant  les  prises  qui  se  font  sur  la  mer.  Eochelle  et  Paris, 
1782,  2  vols.,  8vo. 

G.  M.  Lampredi.    Del  commercio  dei  popoli  neutrali  in  tempo  di  guerra. 
Florence,  1788,  2  vols. 

Demenico  A.  Azuni.  Sistema  universale  dei  principii  del  diritto  mari- 
timo  dell  'Europa.  Florence,  1795,  2  vols.  A  French  translation  by  the 


APPENDIX    I.  3(59 

author  appeared  at  Paris,  1805,  in  2  vols.,  8vo,  under  the  title  Droit  mari 
time  de  1'Enrope,  and  another  by  J.  M.  Digeon,  at  Paris,  in  the  year  VI. 
under  the  title  Systeme  universel  des  principes  du  droit  maritime  de  TEu- 
rope.  The  work  has  had  also  a  Spanish  and  an  English  translation. 

Fred.  J.  Jacobsen.  Handbuch  liber  das  praktische  Seerecht  der  Eng- 
lander  und  Franzosen,  etc.  Altona,  1804,  1805,  2  vols.  Also  Seerecht  des 
Friedens  und  des  Krieges,  in  Bezug  auf  die  Kauffahrteischiffahrt.  Altona, 
1815. 

Lucchesi-Palli  (Count  Ferdinand).  Principii  di  diritto  publico,  etc. 
Naples,  1840.  Also  translated  into  French  by  A.  de  Galiani,  Paris,  1842. 

Theodore  Ortolan.  Regies  internationales  et  diplomatic  de  la  mer. 
Paris,  1845,  third  ed.  ibid.  1856. 

Masse,  M.  G.  Le  Droit  commercial  dans  ses  rapports  avec  les  Droits  des 
gens.  6  vols,  Paris,  1844  and  onward.  The  first  vol.  treats  of  the  rights 
of  trade.  Comp.  Mohl,  I.  423. 

J.  Eeddie.  Eesearches,  historical  and  critical,  in  maritime  international 
law.  Edinb.  1844,  2  vols. 

C.  von  Kaltenborn.  Grundsiitze  des  praktischen  europiiischen  Seerechts. 
Berlin,  1851,  2  vols. 

L.  B.  Hautefeuille.  Des  droits  et  des  devoirs  des  nations  neutres  en 
temps  de  guerre  maritime.  Paris,  1848.  The  second  edition  in  3  vols.T 
revised  and  modified  according  to  the  treaty  of  Paris  of  1856,  appeared  in 
1858.  An  important  work. 

W.  Hazlitt  and  E.  Eoche.  A  manual  of  maritime^ warfare,  embodying 
the  decisions  of  Lord  Stowell.  London,  1854. 

H.  Byerly  Thomson.  The  laws  of  war  affecting  commerce  and  ship* 
ping.  Lond.  1854. 

Lock,  "W.  A.  A  practical  legal  guide  for  sailors  and  merchants  during 
war.  Same  place  and  year. 

Hosack.  The  rights  of  British  and  neutral  commerce,  as  affected'  by 
recent  royal  declarations.  Same  place  and  year.  For  an  estimate  of  these 
four  English  works,  see  Mohl,  I.  424. 

C.  F.  Wurrn.  Yon  der  Neutralitat  des  deutschen  Seehandels  in  Kriegs- 
zeiten.  Hamburg,  1841. 

0.  W.  Ascher.  Beitrage  zu  einigen  Fragen  liber  die  Verhaltnisse  der 
neutralen  Schiffahrt.  Hamburg,  1854. 

II.  Marquardsen,  professor  at  Erlangen  in  Bavaria.  Der  Trent-Fall,  zur 
Lehre  von  der  Kriegs  contrebande,  und  dem  Transportdienst  der  neutralen. 
Erlangen,  1862. 

Of  works  on  the  subjects  of  capture  and  search,  we  mention — 

G.  F.  de  Martens.  Essai  concernant  les  armateurs,  les  prises  et  surtout 
les  reprises,  etc.  Gottingen,  1V95. 

J.  G.  F.  Schlegel.   Sur  la  visite  des  vaisseaux  neutres  sous  convoi,  etc. 

24 


3TO  APPENDIX    I. 

Originally  written  in  Danish,  and  translated  into  French  by  De  Juge.  Co 
penhagen,  1800. 

Kobt.  Ward,  the  historian  of  the  law  of  nations.  A  treatise  of  the  rel 
ative  rights  and  duties  of  belligerent  and  neutral  powers  in  maritime  affairs, 
in  which  the  principles  of  armed  neutralities,  and  the  opinions  of  Hiibner 
and  Sclilegel  are  fully  discussed.  Lond.,  1801.  Also  an  essay  on  contra 
band,  being  a  continuation  of  the  relative  rights  and  duties,  etc.  Lond.,  1801. 

"War  in  disguise  of  the  neutral  flags.  Lond.,  1806.  Reviewed  in  No. 
15  of  the  Edinburgh  Review. 

Answer  to  war  in  disguise,  etc.     New  York,  1806. 

H.  Wheaton.  Inquiry  into  the  validity  of  the  British  claim  to  a  right  of 
visitation  and  search  of  American  vessels.  Lond.,  1842. 

J.  de  Neufville.  De  iis  quad  ad  tollendum  servorum  Afrornm  commer- 
cium  inde  a  Congressu  Viennensi  inter  populos  gesta  sunt.  Amsterd.,  1840. 

St.  Pierre.  Abrege  du  projet  de  paix  perpetuelle.  Rotterdam,  1729.  For 
this  and  other  similar  works  comp.  §  206. 

Kamptz.  Volkerrechtliche  Erorterung  des  Rechtes  der  Machte  in  die 
Verfassung  eines  einzelnes  Staats  Sich  einzumischen.  Berl.,  1821. 

H.  C.  von  Gagern.  Kritik  von  Volkerrechts.     Leipzig,  1840. 

H.  von  Rotteck.  Das  Recht  der  Einmischung  in  die  inneren  Angelegen- 
heiten  eines  fremden  Staates.  Freiburg,  1845. 

Villefort.  De  la  propriete  litteraire  et  artistique  au  point  de  vue  inter 
national.  Paris,  1851.  For  0.  Wachters  Verlagsrecht,  comp.  §  80,  note. 

G.  F.  de  Martens.  Erziihlungen  merkwurdiger  Fiille  des  ueueren  euro- 
paischen  Volkerrechts.  Gottingen,  1800-1802,  2  vols. 

Ch.  de  Martens.  Causes  celebres  du  droit  des  gens  (Leipz.,  1827,  2  vols.), 
and  nouvelles  causes  celebres.  Leipz.,  1844,  2  vols. 

R.  von.  Mohl.  Die  Pflege  der  intern ationalen  Gemeinschaft,  als  Aufgabe 
des  Volkerrechts,  and  Die  Volkerrechtliche  LeKre  vonAsyl,  monographies 
in  his  Staatsrecht,  Volkerrecht  und  Politik.  Vol.  1.  Tubingen,  1860. 

Many  discussions  of  important  points  in  international  law  are  to  be  found 
in  the  periodicals,  especially  in  the  Edinburgh,  British  Quarterly,  and  North 
American  Reviews,  in  the  speeches  of  distinguished  statesmen,  and  in  state 
papers.  Some  of  these  state  papers,  issued  by  our  government,  are  repub- 
lished  in  the  collected  works  of  their  authors,  as  those  of  Webster ;  but  the 
greater  part  of  them  must  be  searched  for  in  the  public  documents.  The 
expense  of  time  in  making  such  search,  is  often  so  great,  that  it  were  desir 
able  if  a  collection  could  be  made  of  all  the  more  important  discussions  on 
the  law  of  nations,  to  which  the  government  has  been  a  party,  since  the 
year  1775,  or  since  the  framing  of  the  present  Constitution,  accompanied 
by  the  notes  or  introductions  of  a  competent  editor. 


APPENDIX  II. 

LIST  OF  THE  MOST  IMPORTANT  TREATIES  SINCE  THE   REFORMATION,  WITH 
A  BRIEF  STATEMENT  OF  THEIR  PROVISIONS. 

[In  this  list  the  dates  of  the  treaties  are  intended  to  represent  the  day  of  thf>ir  sig 
nature,  and  always  in  new  style.  For  the  modern  ones  we  cite  the  collection  of  Mar 
tens  and  his  continuators  thus :  Martens  rec.  or  r.  for  the  recueil,  Martens  nov.  rec.,  or 
n.  r.  for  the  nouveau  recueil,  and  Murhard,  or  Murhard-Samwer,  by  the  volume,  for  the 
nouveau  recueil  general.} 


TEEATIES  OF  THE  AGE  OF  RELIGIOUS  ANTAGONISM. 

1526,  Jan.  14.  (Dumont,  IV.  1,  399.)  Treaty  of  Madrid,  by  which 
Francis  I.  of  France,  then  a  prisoner,  covenanted  to  give  up  his  claims  to 
Milan,  Genoa,  and  Naples,  Flanders  and  Artois,  and  to  transfer  to  the  Em 
peror  Charles  V.  the  duchy  of  Burgundy — with  its  dependencies  the  coun 
ty  of  Charolais  and  the  seigniories  of  Noyers  and  of  Chateau  Chinon, — to 
gether  with  the  viscounty  of  Auxonne  and  the  l  ressort '  or  jurisdiction  of 
Saint-Laurent,  as  being  dependencies  of  Franche-Comte.  These  and  other 
onerous  and  humiliating  conditions  upon  which  he  obtained  his  liberty  he 
neither  fulfilled  nor  intended  to  fulfil.  Indeed  a  '  protestation '  (Dumont, 
u.  s.  412)  of  the  day  before  declares  that  the  treaty  is  null,  being  made  by 
constraint.  (Comp.  §  100.)  Having  by  such  fraud  obtained  his  liberty,  he 
refused,  when  the  estates  of  Burgundy  would  not  separate  themselves  from 
France,  to  return  to  prison,  as  he  had  stipulated.  Then  followed  the  Holy 
League  (at  Cognac,  May  22,  1526,  between  Pope  Clement  VII.,  Francis  L, 
Venice,  Florence  and  the  Duke  of  Milan  against  Charles  V.),  and  a  new 
Italian  war,  and  in 

1529,  Aug.  5.  (Dumont,  IV.  2,  7.)  the  treaty  of  Cambray,  or  paix  des 
dames,  so  called  from  Margaret  of  Austria,  the  Emperor's  sister,  and  Louisa 
of  Savoy,  mother  of  Francis  L,  who  negotiated  it.  By  this  treaty,  which 
was  in  form  a  renewal  of  the  treaty  of  Madrid  with  certain  important  ex 
ceptions,  Francis  was  secured  in  the  possession  of  Burgundy  and  its  de 
pendencies,  renounced  Flanders,  Artois,  etc,,  gave  up  his  claims  in  Italy, 
abandoned  his  allies,  and  in  fact  annihilated  French  influence  in  that  pen 
insula.  His  two  sons,  hostages  at  Madrid,  were  freed  on  an  engagement  to 
pay  two  million  crowns  of  gold  or  ducats.  The  adherents  and  heirs  of  the 
Constable  de  Bourbon  were  to  be  restored  to  their  estates  and  civil  stand 
ing.  This  treaty,  which  was  humiliating  enough  in  itself,  was  made  more 


372  APPENDIX  n. 

so  by  the  solemn  formalities  of  its  ratification,  as  if  to  show  that  the  word 
of  Francis  could  not  be  trusted.     (Comp.  §  106.) 

On  the  29th  of  June,  just  before  this,  at  Barcelona,  a  peace  was  con 
cluded  between  the  Pope  and  the  Emperor,  in  which  the  former  agreed  to 
give  the  latter  the  Imperial  crown,  and  the  investiture  of  Naples  as  a  fief 
without  payment  of  vassals'  dues  except  that  of  a  palfrey,  with  the  right 
of  nomination  to  24  Episcopal  sees  in  that  kingdom.  Charles  in  turn  agreed 
to  restore  the  Pope's  relatives,  the  banished  Medici,  and  to  stop  the  growth 
of  heresy  in  Germany.  (Dumont,  IV.  2,  1-7.)  A  secret  article,  it  is  said, 
stipulated  that  the  Pope  should  not  give  his  consent  to  the  divorce  of  the 
King  of  England  from  the  Emperor's  aunt. 

1530,  Dec.  31.  Recess  or  convention  made  at  Schmalkalden,  preliminary 
to  the  league  concluded  at  the  same  place  Feb.  6,  1531,  between  a  part  of 
the  Protestant  princes  and  towns  for  mutual  protection  in  case  of  attack  on 
account  of  their  religion.  (Dumont,  IV.  2,  pp.  75,  78.)  It  was  renewed  for 
ten  years,  and  enlarged  in  1536,  Sept.  29.  (Dumont,  u.  s.  141.)  For  the 
Catholic  counter-league  of  June  10,  1538,  comp.  Dumont,  n.  s.  164. 

1544,  Sept.  18.  The  peace  of  Crespy  was  chiefly  a  ratification  of  pre 
vious  treaties,  as  that  of  Cambray,  and  that  office  (June  18,  1538),  which 
latter  was  a  ten  years'  truce. 

1547,  May  19.  The  Protestants  of  the  Schmalkalden  League,  having 
taken  up  arms  against  the  Emperor  Charles  V.  without  success,  and  John 
Frederick,  Elector  of  Saxony,  being  made  prisoner  at  the  battle  of  Miihl- 
berg,  he  submits  in  the  capitulation  of  Wittenberg  of  this  date  to  the  loss 
of  his  Electoral  office  and  Principality,  and  to  imprisonment  during  the 
Emperor's  pleasure.  The  Electorate  is  transferred  from  the  Ernestine  to 
the  Albertine  line  of  Saxony,  which  is  still  the  leading  house ;  and  to  the 
captive  Elector's  children  were  granted  a  number  of  towns  and  districts,  as 
Eisenach,  Weimar,  Jena,  Gotha,  Saalfeld,  and  Coburg, — the  latter  to  be 
used  first  for  the  benefit  of  his  brother.  (Dumont,  u.  s.  332.)  Out  of  these 
grew  the  Saxon  duchies. 

1552,  Aug.  2.  Treaty  of  Passau,  by  which  the  Landgrave  of  Hesse  was 
set  free,  other  Protestant  princes  were  restored  to  their  honors  and  estates, 
and  religious  freedom  was  promised  to  the  adherents  of  the  Augsburg  Con 
fession,  etc.  (Dumont,  IV.  3,  42.)  This  was  preliminary  to  the  religious 
peace,  concluded  between  the  estates  of  Germany  in  the  year 

1555,  Sept.  25,  at  Augsburg.  By  this  the  Lutheran  religion  acquired  a 
legal  status  by  the  side  of  the  Catholic,  but  the  Reformed  religion  gained 
no  privileges.  The  peace  embraced  knights  holding  immediately  of  the 
empire,  and  both  imperial  and  free  towns,  as  well  as  higher  members  of 
the  confederation.  Subjects  professing  another  religion  from  that  of  their 
lord  might  have  the  liberty  of  emigrating  without  loss  of  goods.  The 
church  property  already  in  the  hands  of  Protestant  estates,  and  not  imme- 


APPENDIX    II.  373 

diately  related  to  the  empire,  was  confirmed  to  them.  All  ecclesiastics  who 
should  renounce  the  Catholic  religion  for  that  of  the  Augsburg  Confession, 
"  whether  archbishop,  bishop,  prelate  or  any  other  of  the  spiritual  order," 
should  lose  the  church  goods  and  rights  which  they  had  before  enjoyed. 
This  goes  by  the  name  of  the  reservatum  ecclesiasticum,  and  proved  to  be  a 
source  of  countless  troubles.  (Dumont,  u.  s.  IY.  3,  88.) 

1579,  Jan.  23.  The  union  of  Utrecht,  out  of  which  grew  the  Dutch  re 
public.  (Dumont,  Y.  1,  322.) 

1631,  April  6.  Treaty  of  Cherasco  (Querasque),  between  the  Emperor 
Ferdinand  II.  and  Louis  XIII.  of  France  (Dumont,  YI.  1,  9),  carrying  out 
the  treaty  of  Ratisbon  (Regensburg),  of  Oct.  13,  1630,  by  virtue  of  which 
the  Emperor  was  to  acknowledge  Charles  Duke  of  Nevers  as  Duke  of  Man 
tua  and  Montferrat.  (Dumont,  Y.  2,  615.)  But  Trino  (Train)  and  certain 
other  places  in  Montferrat  were  to  go  to  the  Duke  of  Savoy.  The  French 
also  renounced  their  conquests  in  Italy.  In  a  secret  treaty  however  be 
tween  France  and  Savoy,  the  best  parts  of  Montferrat,  the  town  of  Alba 
and  its  environs,  were  to  be  handed  over  to  the  Duke  of  Savoy,  who  in 
turn  was  to  give  back  Pignerol,  and  a  road  from  France  leading  to  it,  to 
the  French  king,  thus  opening  the  way  into  Italy.  By  this  secret  treaty 
the  Pope  was  deceived,  and  the  interests  of  the  French  pretendant  to  Man 
tua  were  sacrificed.  (Comp.  Schlosser's  Weltgesch.  XIV.  398.) 

1648,  Oct.  24.  PEACE  of  Westphalia,  consisting  of  the  two  treaties  of 
Miinster  where  the  French,  and  of  Osnabriick  where  the  Swedes  negotiated 
with  the  Emperor — the  smaller  German  powers  being  also  represented. 
This  peace  put  an  end  to  the  thirty  years'  war,  and  adjusted  the  relations 
of  a  large  part  of  Europe.  In  the  same  year,  on  the  30th  of  January,  Spain 
and  Holland  made  a  treaty  of  peace  at  Miinster. 

Some  of  the  more  important  diplomatic  transactions,  before  this  war  or 
during  its  course,  and  relating  to  the  quarrels  in  the  German  empire,  were 
the  Protestant  Union,  May,  1608;  the  Catholic  Liga,  1610  (Dumont,  Y.  2, 
118) ;  the  treaty  of  Ulm,  July  3,  1620,  by  which  the  Protestant  princes  vir 
tually  abandoned  the  Elector  Palatine,  as  far  as  Bohemia  was  concerned 
(Dumont,  u.  s.  369)  ;  the  peace  of  Ltibeck,  May  22,  1629,  in  which  the  King 
of  Denmark  withdrew  from  the  war  in  Germany  (Dumont,  u.  s.  584)  ;  the 
edict  of  restitution,  March  6,  1629  (Dumont,  u.  s.  564);  and  the  peace  of 
Prague,  May  30,  1635  (Dumont,  YI.  1,  88),  between  the  Emperor  and  the 
Elector  of  Saxony,  to  which  last  nearly  all  the  German  estates  ere  long 
acceded,  thus  abandoning  the  war  and  the  cause  of  the  Swedes.  The  edict 
of  restitution  was  an  interpretation,  given  by  the  Emperor's  arbitrary  act, 
to  the  treaties  of  Passau  and  of  Augsburg,  to  the  effect  that  all  ecclesiasti 
cal  property,  seized  by  the  Protestant  estates  since  the  year  1552,  should 
be  restored ;  that  Catholic  princes  had  the  right  of  requiring  their  Prot 
estant  subjects  to  conform  to  their  religion  or  of  sending  them  out  of 


3T4:  APPENDIX  n. 

their  territories ;  and  that  the  peace  did  not  include  any  Protestants,  ex 
cept  those  who  adhered  to  the  Confession  of  Augsburg  non  variata,  thus 
excluding  the  Reformed  or  Calvinists.  The  peace  of  Prague,  on  the 
other  hand,  virtually  gave  into  the  hands  of  the  Protestant  estates  all 
immediate  property  which  they  had  appropriated  before,  and  all  mediate 
or  immediate  which  they  had  appropriated  since  the  religious  peace,  by 
conceding  to  them  the  control  and  use  of  it  for  forty  years,  etc. 

The  principal  provisions  of  the  peace  of  Westphalia  (Dumont  VI.  1, 
450,  469  in  French, — for  the  original  Latin  see  Ghillany,  manual  diplom.  I. 
1-100)  were  in  brief  these  : 

1.  Sweden,  as  a  satisfaction  for  restoring  places  occupied  in  the  war, 
received  hither  Pomerania,  the  isle  of  Rugen,  parts  of  further  Pomera- 
nia,  viz. :  Stettin,  Garz,  Damm,  Golnow  and  the  isle  of  Wollin,  the  course 
of  the  Oder  between  these  places,  the  'frische  Haff '  and  its  mouths,  etc., 
with  the  expectancy  of  the  rest  of  further  Pomerania,  should  the  males  of 
the  house  of  Brandenburg  become  extinct ;  further,  the  archbishopric  of 
Bremen  (the  city  retaining  its  rights  and  immediate  relation  to  the  em 
pire),  the  bishopric  of  Werden,  the  town  and  port  of  Wismar  with  various 
appurtenances.     These  were  to  continue  parts  of  the  Empire,  of  which 
the  King  of  Sweden,  as  Duke  of  Bremen,  Werden  and  Pomerania,  Prince 
of  Riigen,  and  Lord  of  Wismar,  was   to  become  a  member  with  three 
votes  in  the  Diet ;  with  the  privilege  of  supreme  jurisdiction  on  condition 
of  erecting  a  court  of  highest  instance  within  the  territory, — which  was 
established  at  Wismar ; — with  the  power  of  choosing  between  the  Aulic 
Council  and  the  Imperial  Chamber,  in  case  suits  should  be  brought  against 
Sweden  touching  these  German  territories;  and  with  the  right  of  founding 
a  University,  for  which  Greifswald  was  afterward  selected  (peace  of  Os- 
nabriick,  Art.  X). — To  the  Swedish  troops  five  million  rix  dollars  were  to 
be  paid  by  the  Empire  (Art.  XVI),  and  a  secret  article  bound  the  Emperor 
to  pay  to   Sweden   600,000   rix  dollars,  and  determined  the   mode  of 
payment. 

2.  To  France  were  ceded  the  bishoprics  of  Metz,  Toul  and  Verdun, 
the  town  of  Pi^nerol  (see  treaty  of  Cherasco),  Breisach,  the  landgravate 
of  Upper  and  Lower  Alsace,  the  Sundgau,  the  prefecture  or  "  landvogtei  " 
of  ten  imperial  towns  in  Alsace,  and  the  right  to  occupy  the  fortress  of 
Philippsburg.     The  ceded  places  in  Alsace,  the  Snndgau  and  the  prefecture 
were  to  pertai  n  to  the  Crown  of  France  for  ever  and  to  ~be  incorporated  with  its 
dominions  (peace  of  Miinst.   §VO~§76).    Yet  a  later  article  of  this  peace, 
(§  87)  binds  the  King  of  France  to  leave  the  bishops  of  Basel  and  of  Stras- 
burg,  with  all  estates  in  either  Alsace  holding  immediately  of  the  Empire, 
the  ten  imperial  towns  before  mentioned,  etc.,  "  in  that  liberty  and  posses 
sion  of  immediacy  toward  the  Empire  which  they  had  before  enjoyed." 
For  the  questions  which  grew  out  of  these  articles,  see  De  Garden,  I.  213- 
223. 


APPENDIX  n.  375 

3.  A  general  amnesty  running  back  to  the  beginning  of  the  war,  and  a 
restitution  of  the  state  of  things  in  1624  among  the  estates  of  the  Empire 
were  agreed  upon.     But  in  express  terms  a  number  of  the  German  States 
had  territory  confirmed  to  them,  or  granted  by  way  of  compensation. 
Thus  to  the  Elector  of  Brandenburg,  for  his  territory  ceded  to  Sweden, 
were  assigned  the  bishoprics  of   Minden,   Halberstadt  and   Camin,  and 
archbishopric  of  Magdeburg  or  rather  the  greater  part  of  its  territory, 
after  the  rights  of  its  present  administrator,  the  Duke  of  Saxony,  should 
cease.     It  came  into  the  hands  of  the  Prussian  House  not  until  1680. 
Whatever  power  of  collation  within  the  bishopric  of  Gamin  the  Dukes  of 
hither  Pomerania  formerly  had  was  to  go  to  Sweden,  but  the  patronage 
held  by  the  former  dukes  of  further  Pomerania,  the  episcopal  territory, 
and  the  part  of  further  Pomerania  not  secured  to  Sweden,  were  to  go  to 
Brandenburg.     Again,  to  Mecklenburg,  in  lieu  of  Wismar,  were  given  the 
episcopal  territories  of  Schwerin  and  Ratzeburg  with  two  commanderies, 
or  benefices  of  the  Knights  of  St.  John,  within  the  Duchy,  Mirau  and 
Nemerau,  the  latter  being  put  into  the  hands  of  the  line  of  Gustrow,  the 
rest  into  those  of  Schwerin.    Further,  to  Brunswick-Lii neburg,  as  a  compen 
sation  for  rights  renounced  to  Sweden,  Brandenburg  and  Mecklenburg,  was 
given,  together  with  the  monastic  foundations  of  Walkenried  and  Gronin- 
gen,  etc.,  the  perpetual  alternate  succession  in  the  bishopric  of  Osnabriick. 
After  the  decease  of  the  present  bishop,  a  Protestant  one  was  to  be  elected 
from  the  houses  of  Brunswick,   during  whose  office  the  archbishop  of 
Cologne  was  to  exercise  episcopal  rights,  as  metropolitan,  but  over  Catho 
lics  only.     The  house  of  Hesse- Cassel  received  the  abbey  of  Heivfeld  or 
Hirschfeld,  as  a  secular  principality  with  the  sovereignty  over  Schaumburg 
and  other  territory  formerly  claimed  by  the  bishop  of  Minden,  an  indem 
nity  in  money  of  600,000  thalers,   and  an  acknowledgment  of  its  claims 
to  a  share  in  the  inheritance  of  Marburg    (treaty  of  Osnab.,  Art.  XI- 
XV). 

4.  The  exiled  and  despoiled  house  of  the  Electors  Palatine  recovered 
the  lower  Palatinate,  with  the  right  of  reversion  to  the  upper ;  and  an 
eighth  electorate  was  erected  in  its  favor,  the  old  dignity  of  Elector  Pala 
tine  and  the  upper  Palatinate  remaining  with  Bavaria  until  the  expiration 
of  its  ducal  line.      So  also  the  outlawed  or  expelled  princes  of  Wiir- 
temberg,  Baden,  Nassau,  etc.,  were  restored  to  their  pristine  state  (Art. 
IV). 

5.  Switzerland,  long  independent  and  disconnected  from  the  Empire  in 
fact,  was  acknowledged  to  be  such  in  right. 

6.  The  Emperor  was  to  be  governed  by  the  votes  of  the  diet, — which 
was  thus  conceded  to  be  more  than  an  advisory  body, — in  all  matters  per 
taining  to  war,  peace,  legislation,  etc.     The  members  of  the  diet  obtained 
the  right  not  only  of  contracting  alliances  among  themselves  but  with 


376  APPENDIX  n. 

foreign  princes  also,  provided  no  prejudice  came  thereby  to  the  Emperor 
and  the  Empire, — an  unmeaning  clause,  which  could  not  prevent  the  effect 
of  this  vast  concession  to  weaken  the  power  of  the  Emperor  and  the  unity 
of  the  Empire  very  greatly.  The  imperial  court  was  to  have  members  of 
boih  religions  in  nearly  equal  numbers ;  that  is,  two  Catholic  presidents 
and  twenty-six  assessors,  two  presidents  of  the  Augsburg  Confession,  ap 
pointed  by  the  Emperor,  and  twenty-four  assessors.  If  the  opinions  of 
the  court  were  divided  according  to  the  religious  faith  of  the  members,  a 
case  was  to  go  up  to  the  Diet  (Art.  VIIL,  Art.  V.,  §53). 

7.  Among  the  provisions  affecting  Religion,  the  most  important  are  the 
following: — 1.  The  religious  freedom,  guaranteed  in  the  treaty  of  Passau 
and  in  the  religious  peace  of  Augoburg,  was  confirmed  to  the  Lutherans, 
and  extended  to  the  Reformed  or  Calvinists.  '  But  no  other  form  of  reli 
gion  besides  these  and  the  Catholic  was  to  be  tolerated  in  the  Empire  (Art. 
V.,  §  1,  Art.  VII).  2.  The  reservation  ecclesiasticum  of  the  earlier  treaties 
was  replaced  by  a  rule  making  the  year  1624  the  normal  year  for  the  pur 
pose  of  deciding  which  confession  should  have  the  control  over  ecclesiastical 
properties :  that  is,  a  benefice,  held  by  a  Catholic  or  Protestant  in  January, 
1624,  should  remain  in  perpetuity  attached  to  the  same  religion  (Art.  V., 
§2).  But  in  the  Palatinate,  Baden,  "Wurtemberg,  etc.,  by  the  act  of  am 
nesty  (Art.  IV,,  §§  6,  24,  26)  all  things  were  to  be  restored  to  the  con 
dition  which  existed  before  the  '  Bohemian  movements,'  i.  e.,  the  year 
1618  was  the  normal  year  for  the  Elector  Palatine  and  his  allies,  the  old 
religious  constitution  of  whose  territories  would  otherwise  have  been 
wholly  altered.  The  Protestants  long  insisted  on  1618  as  the  normal  year, 
but  as  most  of  the  counterreforms  in  the  Emperor's  hereditary  dominions 
took  place  between  this  year  and  1624,  he  would  not  yield,  and  the  Swedes 
gave  way.  This  suppressed  the  Reformation  in  Bohemia  and  a  large  part 
of  Southern  Germany.  Moreover,  as  the  amnesty  (Art.  IV.  §§  52,  53), 
conceded  to  subjects  of  Austria,  included  no  restoration  of  their  confiscated 
estates,  their  condition  was  a  very  hard  one.  An  exception  however  was 
made  in  favor  of  certain  of  the  higher  Silesian  nobility,  and  of  the  town 
of  Breslau  :  though  subjects  of  Austria,  these  were  allowed  to  retain  such 
rights  of  Protestant  worship  as  they  enjoyed  before  the  war.  Other 
nobles  of  Silesia  and  of  lower  Austria  with  their  subjects,  adherents  of 
the  Augsburg  confession,  had  the  right  of  private  worship  and  could  not 
be  compelled  to  emigrate.  Three  Lutheran  churches  were  to  be  allowed 
in  Silesia  (Art.  V,,  §§  38,  39,  40).  3.  If  a  holder  of  an  ecclesiastical  benefice 
should  change  his  religion,  he  was  to  vacate  his  benefice  without  restoring 
the  former  fruits  of  it,  or  losing  his  honor  or  good  name.  4.  If  any  terri 
torial  sovereign  should  change  his  religion  (as  from  the  Lutheran  to  the 
Reformed),  or  acquire  sovereignty  over  aland  where  another  cultus-w&a 
established,  he  could  there -only  enjoy  his  own  domestic  worship,  without 


APPENDIX    II.  377 

having  the  power  of  altering  the  existing  church,  or  filling  the  offices  with 
persons  of  his  own  faith.  If  a  community  should  go  over  to  the  religion 
of  the  new  sovereign,  it  might  do  so  unhindered,  but  the  old  state  of  things 
in  school  and  church  must  continue  (Art.  VII.,  §§1,  2).  5.  The  jus  re- 
formandi  of  the  old  treaties  was  renewed  to  all  the  immediate  estates  of 
the  Empire,  but  the  following  limitations  were  imposed  on  its  exercise : 
Subjects  differing  in  religion  from  their  sovereign,  and  holding  ec 
clesiastical  goods  in  any  part  of  1624,  were  secured  in  possession  of 
the  same.  Those  who  had  enjoyed  the  right  of  public  or  of  house 
worship,  in  any  part  of  1624,  were  to  retain  the  right,  and  were 
secured  in  all  things  incidental  to  it.  Those  subjects  of  sovereigns 
of  a  different  religion,  who  had  neither  the  public  nor  the  do 
mestic  exercise  of  their  religion  at  the  time  aforesaid,  or  who  should 
change  their  religion  after  the  peace,  had  liberty  of  conscience  and  the 
civil  advantages  of  other  citizens  guaranteed  to  them.  This  toleration 
consisted  in  the  free  exercise  of  private  devotions,  the  public  exercise  of 
their  religion  in  the  vicinity,  if  they  were  near  places  of  worship,  and  in 
the  right  of  sending  their  children  to  schools  abroad,  or  of  employing  in 
structors  at  home,  of  their  own  faith.  They  might  however  be  compelled 
to  emigrate,  or  might  emigrate  of  their  own  accord.  In  this  case  they 
should  be  free  to  dispose  of  their  own  estates,  and  if  required  to  leave 
their  homes,  a  term  of  several  years  was  to  be  granted  to  them  for  this 
purpose  (Art.  V.,  §§36,  37,  39,40). 

The  peace  of  Westphalia,  says  Wheaton  (Hist.,  parti,  at  the  beginning), 
"established  the  equality  of  the  three  religious  communities  of  Catholics, 
Lutherans,  and  Oalvinists,  in  Germany,  and  sought  to  oppose  a  perpetual 
barrier  to  further  religious  innovations  and  secularizations  of  ecclesiastical 
property.  At  the  same  time,  it  rendered  the  states  of  the  Empire  almost 
independent  of  the  Emperor,  its  federal  head.  It  arrested  the  progress  of 
Germany  toward  national  unity  under  the  Catholic  banner,  and  prepared 
the  way  for  the  subsequent  development  of  the  power  of  Prussia, — the  child 
of  the  Reformation, — which  thus  became  the»naturalhead  of  the  Protestant 
party,  and  the  political  rival  of  the  house  of  Austria,  which  last  still  main 
tained  its  ancient  position  as  the  temporal  chief  of  the  Catholic  body.  It 
introduced  two  foreign  elements  into  the  internal  constitution  of  the  Em 
pire, — France  and  Sweden,  as  guarantees  of  the  peace,  and  Sweden  as  a 
member  of  the  federal  body, — thus  giving  to  these  two  powers  a  perpetual 
right  of  interference  in  the  internal  affairs  of  Germany.  It  reserved  to  the 
individual  states  the  liberty  of  forming  alliances  among  themselves,  as  well 
as  with  foreign  powers,  for  their  preservation  and  security,  provided  these 
alliances  were  not  directed  against  the  Emperor  and  the  Empire,  nor  con 
trary  to  the  public  peace  and  that  of  Westphalia.  This  liberty  contributed 
to  render  the  federative  system  of  Germany  a  new  security  for  the  general 


378  APPENDIX  n. 

balance  of  European  power.  The  Germanic  body  thus  placed  in  the  centre 
of  Europe,  served,  by  its  composition,  in  which  so  many  political  and  reli 
gious  interests  were  combined,  to  maintain  the  independence  and  tranquil 
lity  of  all  the  neighboring  states." 

1648,  Jan.  30.  "While  the  peace  of  Westphalia  was  still  in  agitation, 
Spain  and  Holland  made  a  separate  peace  at  Minister.  By  this  treaty.  (1.) 
the  freedom  and  sovereignty  of  the  United  Provinces  were  recognized.  (2.) 
Each  party  retained  the  places  in  its  possession.  Thus  Holland  gained 
Bois-le-Duc  or  Hertogenbusch,  Bergen-op-Zoom  with  Breda  in  Brabant, 
Hulst,  Axel,  etc.,  in  Flanders,. certain  joint  rights  in  Limburg,  etc.  (3.)  The 
Scheldt  and  certain  water-courses  connected  with  it  were  closed,  by  which 
Antwerp  declined.  (4.)  Places  won  by  the  Dutch  from  Portugal  were 
renounced  by  Spain.  Important  commercial  concessions  were  made  to 
Holland  in  the  East  and  West  Indies.  (Dumont,  VI.  1,  429,  in  French.) 

1659,  Nov.  7.    Peace  of  the  Pyrenees,  which  ended  a  twenty  years'  war 
between  France  and  Spain  connected  with  the  long  war  in  Germany.    This 
peace  was  negotiated  in  an  island  of  the  Bidassoa,  by  the  ministers  of  the 
two  kingdoms  in  person,  Louis  de  Haro  and  Cardinal  Mazarin.     By  this 
peace  the  Prince  of  Conde  was  reestablished  in  his  estates  and  honors, — 
receiving  however  the  government  of  Burgundy  instead  of  that  of  Guienne ; 
the  Duke  of  Lorraine  received  his  duchy  again,  giving  up  Moyenvic,  the 
duchy  of  Bar  and  the  county  of  Clermont,  and  ajlowing  free  transit  for  tho 
troops  of  France ;  the  dukes  of  Modena  and  Savoy,  allies  of  France,  were 
restored  to  the  state  they  had  been  in  before  the  war ;  and  the  Prince  of 
Monaco  was  to  be  put  in  possession  of  his  estates  under  the  jurisdiction  of 
the  Spanish  king,  with  the  liberty  of  alienating  them,  etc.     France  received 
by  this  treaty  Artois,  except  St.  Omer  and  Aire,  with  places  in  Flanders, 
Hainault  and  Luxemburg ;  and  on  the  borders  of  Spain  the  counties  of 
Koussillon  and  Conflans,  except  the  parts  lying  in  the  Pyrenees,  and  a 
portion  of  Cerdagne  in  those  mountains  looking  toward  France.     It  was 
stipulated  that  no  aid  should  be  given  by  France  to  Portugal,  which  Spain 
hoped  to  resubjugate.     Finally  the  marriage  of  Louis  XIV.  and  the  Infanta 
of  Spain,  Maria  Theresa,  was  agreed  upon  in  this  treaty,  and  in  a  special 
contract  of  the  same  date;  and  it  was  stipulated  that  the  Infanta,  for  her 
self  and  the  issue  she  might  have  by  the  French  king,  in  consideration  of  a 
dowry  of  500  000  gold  crowns,  should  renounce  before  marriage  for  her 
self,  and  conjointly  with  him  after  marriage,  all  right  of  succession  to  the 
crown  of  Spain.  (Dumont,  VI.  2,  264-292.)     This  treaty  added  to  the 
advantages  gained  by  France  in  the  treaty  of  Miinster,  and  her  ascendency 
in  Europe  was  now  secured. 

1660,  May  3  and  June  6.    Treaty  of  Oliva  near  Dantzig  between  tho 
King  of  Poland  of  the  house  of  Wasa  in  the  elder  branch  with  his  allies,  and 
the  King  of  Sweden ;  and  treaty  of  Copenhagen  between  the  kings  of  Den- 


APPENDIX   II.  379 

mark  and  Sweden.  By  the  first  the  Polish  king  renounced  for  himself  and 
his  line  all  claim  to  Sweden,  Finland,  etc.,  recovered  supremacy  over  Cour- 
land  and  certain  towns,  Marienburg,  Elbing,  etc.,  and  gave  up  to  Sweden 
Esthonia  and  Livonia  in  great  part.  The  duchy  of  Prussia  was  entirely 
severed  from  Poland's  suzerainty  in  favor  of  the  Elector  of  Brandenburg. 
The  treaty  of  Copenhagen  confirmed  in  part  that  of  Eoetskild  (or  Rot- 
schild,  March  8,  1558.  Dumont,  VI.  2,  205).  The  provinces  of  Holland, 
Schonen,  Bleckingen,  the  islet  of  Hween,  Bahus  and  its  precinct  were 
secured  to  Sweden,  which  restored  to  Denmark  the  island  of  Bornholm, 
and  Drontheim  in  Norway,  conquered  in  the  war,  and  renounced  its  claims 
to  the  county  of  Delmenhorst  and  Ditmarsch  in  Germany.  Arrangements 
were  made  also  with  regard  to  the  right  of  passage  through  the  Sound  and 
the  Belt.  Of  the  treaty  of  Oliva,  France  was  a  guarantee ;  of  the  treaty  of 
Copenhagen,  France,  England,  Holland. 

TREATIES  OF  THE  AGE  OF  Louis  XIY. 

1667,  July  31.    Treaties  of  Breda  between  England  and  France,  Eng 
land  and  Holland,  England  and  Denmark.     England  restored  to  France 
Acadia  (Nova  Scotia),  and  recovered  Antigua,  Montserrat,  and  the  English 
part  of  St.  Christopher's  in  the  West  Indies.    Between  England  and  Hol 
land  the  status  quo  of  May  20,  1667,  determined  in  regard  to  the  acquisi 
tions  they  might  have  made  from  one  another  in  the  war.     By  this  rule 
England  retained  New  Netherlands  (New  York),  and  Holland,  Surinam. 
Another  article  of  great  importance  for  Holland  modified  the  English  navi 
gation  act  of  1651,  in  such  sort  that  merchandise  coming  down  the  Rhine 
could  be  imported  into  England  in  Dutch  vessels.  (Dumont,  VII.  1,  40-56.) 

1668,  Jan.  23.     Triple  alliance  between  England,  Holland  and  Sweden 
in  order  to  promote  a  peace  between  France  and  Spain.  (Dumont,  u.  s. 
68-70.)    In  May  of  the  same  year  peace  was  concluded  between  France 
and  Spain,  at  Aix-la-Chapelle,  by  which  places,  taken  by  the  French  in  the 
Spanish   Netherlands,   were  retained, — Charleroi,   Binche,   Ath,   Douay, 
Tournay,  Oudenarde,  Lille,  Armentieres,  Courtray,  Bruges,  Fumes,  the 
fort  of  Scarpe ; — and  Franche  Comte  was  restored  to  Spain. 

1668,  Feb.  23.  Treaty  of  Lisbon  between  Spain  and  Portugal,  England 
acting  as  mediator  and  guarantee.  The  independence  of  Portugal  is 
virtually  acknowledged  by  Spain's  making  a  treaty ;  and  all  territory, 
except  Ceuta  in  Africa,  is  restored.  (Dumont,  VII.  1,  70.) 

1678-9.  Peace  of  Nymwegen  (Nimeguen),  ending  the  Dutch  war,  the 
parties  in -which  had  been  France,  England,  Sweden,  some  of  the  smaller 
states  of  the  Empire  on  the  one  hand,  and  Holland,  the  Elector  of  Bran 
denburg,  Spain,  the  Emperor,  Denmark,  and  some  of  the  smaller  German 
states  on  the  other.  The  English  king  (Charles  II.)  was  forced  by  the 


380  APPENDIX    II. 

Parliament  to  make  peace  with  the  Dutch  in  1674,  and  a  close  alliance 
between  the  two  powers  was  arranged  at  "Westminster  (March  3,  1678). 
The  treaties  made  at  Nimeguen  were  those  of  Holland  with  France,  Aug. 
10,  1678,  of  Spain  with  France,  Sept.  17  of  the  same  year,  of  the  Emperor 
with  France,  and  also  with  Sweden,  Feb.  5,  1679,  and  of  Holland  with 
Sweden,  Oct.  12,  1679.  Denmark  treated  with  France  at  Fontainebleau, 
Sept.  2,  1679,  and  with  Sweden  at  Lund,  Sept.  26,  1679.  The  Elector  of 
Brandenburg  made  a  treaty  with  France  and  Sweden  at  St.  Germain-en- 
Laye,  June  29,  1679, — not  to  mention  other  less  important  transactions. 
(Dumont,  VII.  1,  351,  etc.)  In  this  general  pacification,  (1.)  Holland  had 
restored  to  her  all  the  places  taken  by  the  French  in  the  war ;  and  by  a 
separate  article  restitution  was  to  be  made  to  the  Prince  of  Orange,  of 
Orange  and  other  estates  in  the  dominions  of  the  French  king.  (2.)  Spain 
got  back  in  the  Netherlands,  Charleroi,  Binche,  Oudenarde,  Ath,  Courtray 
(see  treaty  of  Aix-la-Chapelle,  1668),  the  land  beyond  the  Meuse,  Ghent, 
the  fort  of  Eodenhus,  the  district  of  "Waes ;  also  the  town  and  duchy  of  Lim- 
burg,  the  towns  of  Leuve  and  St.  Ghilain,  and  in  Catalonia  the  town  of  Puy- 
cerda.  Spain  ceded  to  France  all  Franche  Comte,  Valenciennes,  Cambray 
and  the  Cambresis,  Aire,  Poperingen,  St.  Omer,  Ypern  (Ypres),  etc.  (3.) 
The  Emperor  ceded  to  France  Freiburg  in  the  Breisgau,  with  right  of  road 
from  Breisach,  recovered  Philippsburg  for  the  Empire  (see  treaty  of  "West 
phalia),  procured  the  restoration  of  the  Duke  of  Lorraine  to  his  duchy  and 
estates,  yet  only  on  the  most  onerous  conditions,  and  engaged  to  put  the 
Furstenburg  princes  in  the  state  in  which  they  were  before  the  war.  As 
regards  its  eastern  borders,  France  had  a  very  great  advantage  by  these 
treaties,  especially  at  the  cost  of  Spain.  (4.)  Sweden  recovered  what  Den 
mark  had  conquered,  Wismar,  the  isle  of  Riigen,  etc.,  and  the  Danes  engaged 
to  restore  the  Duke  of  Holstein-Gottorp  to  his  state  before  the  war. 
Sweden  moreover  recovered  what  the  Elector  of  Brandenburg  had  con 
quered  from  her  in  hither  Pomerania,  but  gave  up  the  lands  beyond  the 
Oder,  except  the  towns  of  Dam  and  Golnow.  (See  peace  of  Westphalia.) 

1697,  Sept.  20,  and  Oct.  30.  Peace  of  Eyswick,  made  at  a  palace  near 
the  Hague,  and  closing  a  war  of  almost  ten  years1  duration,  often  called 
the  war  of  Orleans,  between  France  and  the  principal  powers  of  Europe. 
Soon  after  the  peace  of  Nimeguen,  Louis  XIV.,  by  means  of  courts  erected 
for  the  purpose  '  reunited,'  as  it  was  called,  to  his  kingdom  parts  of  the 
adjoining  foreign  territory,  seized  Strasburg  in  1681,  and  committed  other 
flagitious  acts  of  aggression.  Leagues  were  formed  against  him,  but 
amounted  to  nothing,  until  in  1686,  at  Augsburg,  many  of  the  German 
powers  concluded  one  for  mutual  protection,  which  was  signed  at  Vienna 
in  1687.  The  next  year  Louis  began  open  war  by  invading  the  Empire, 
urging  as  his  pretexts  besides  this  league  the  claim  of  his  sister-in-law,  the 
Duchess  of  Orleans,  to  the  allodial  property  of  her  brother  who  was  the 


APPENDIX    II.  381 

last  male  of  the  Simmern  branch  of  Electors  Palatine,  as  also  the  indignities 
offered  to  him  in  the  disputed  election  of  the  archbishop  at  Cologne.  To 
oppose  him  an  alliance  was  concluded  between  Holland  and  the  Emperor 
and  Empire  at  Vienna,  May  12,  1689,  to  which  England  under  "William  III. 
and  Spain  afterward  acceded,  with  whom  the  Duke  of  Savoy  and  the 
King  of  Denmark  acted  in  concert.  The  parties  engaged  to  treat  with  Louis 
only  on  the  basis  of  the  treaties  of  Westphalia  and  of  the  Pyrenees,  to  procure 
the  restoration  of  the  Duke  of  Lorraine  to  his  rights  in  full,  and,— in  a  sep 
arate  article, — to  secure  to  the  Emperor  and  his  heirs  the  succession  in  Spain, 
if  Charles  II.  should  die  childless.  (Dumont,  VII.  2,  229-230,  241,  267.) 

The  peace  of  Ryswick  consisted  of  treaties  of  France  with  England, 
Spain,  Holland  and  the  Emperor  and  Empire,  with  which  last  peace  was 
not  effected  until  Oct.  30,  169T.  (Dumont,  VII.  2,  399,  408,  381,  421.)  (1.) 
England  and  France  mutually  restored  what  had  been  taken  in  the  war, 
"William  of  Orange  was  acknowledged  to  be  lawful  king  of  Great  Britain, 
and  Louis  promised  not  to  help  his  enemies,  i.  e.,  James  II.  (2.)  To  Spain 
France  restored  all  the  '  reunions '  made  since  the  peace  of  Nimeguen,  82 
places  excepted,  together  with  the  conquests  of  the  war.  (3.)  Holland 
returned  Pondichery  in  India  to  the  French  East  India  company  and 
received  valuable  commercial  privileges  from  France.  (4.)  The  French 
king  gave  up  all  his  '  reunions '  made  from  the  Empire,  except  in  Alsace, 
which  lost  henceforth  all  connection  with  the  Empire,  and  became  an  inte 
gral  part  of  France.  Another  article  gave  up  Strasburg  expressly  to 
France ;  others  still  ceded  Breisach  and  Freiburg  to  the  Emperor,  Philipps- 
burg  to  the  Empire  (see  peace  of  Westphalia),  restored  the  duchy  of 
Zweibriicken  (Deuxponts)  to  the  King  of  Sweden,  as  Count  Palatine  of  the 
Ehine,  and  Mumpelgard  (Montbeliard)  to  Wiirtemberg,  etc.,  provided  for 
the  Duke  of  Lorraine  on  the  terms  granted  to  his  father  by  France  in  1670, 
reinstated  the  Cardinal  Furstenburg  in  his  bishopric  of  Strasburg  and  other 
rights,  rased  a  number  of  forts,  declared  the  navigation  of  the  Rhine  free, 
etc. — An  earlier  treaty  of  Aug.  29,  1696,  between  France  and  Savoy,  was 
confirmed  in  the  peace  of  Ryswiek,  in  which  Louis  agreed  to  give  back 
Pignerol  (see  peace  of  Westphalia,  peace  of  Cherasco),  with  its  fortifica 
tions  demolished,  and  to  restore  the  conquests  of  the  war.  (Dumont,  VII.  2, 
368,  383,  art.  16  of  treaty  with  Holland.) 

In  the  fourth  article  of  the  treaty  with  the  Emperor  restoring  the  con 
quests  and  reunions  outside  of  Alsace  (Dumont,  VII.  2,  422),  occurs  this 
clause :  "  religione  tamen  Catholica  Romana  in  locis  sic  restitutis  in  statu 
quo  nunc  est  remanente."  During  the  French  occupation  of  these  districts, 
Protestantism  had  been  suppressed  by  force.  The  Protestants  protested 
against  this  peace  on  this  account,  and  claimed  that  it  violated  the  peace  of 
Westphalia  on  the  basis  of  which  it  was  made.  The  Diet,  however,  ratified 
it,  Nov.  26, 1697,  but  added  in  a  postscript  that  the  Catholics  would  make  no 


382  APPENDIX    II. 

use  of  tins  clause  against  the  Protestants.  The  clause,  moreover,  was  said 
to  relate  only  to  certain  churches  endowed  by  Louis  XIV.  The  Emperor 
confirmed  the  vote  of  the  Diet  in  ratification  of  the  peace,  but  passed  over 
the  postscript  in  silence.  Soon  afterward  the  French  minister  claimed  that 
the  clause  related  to  churches  in  1,922  places,  where  the  chaplains  of  regi 
ments  passing  through  had  said  mass. 

1698.  First  partition  treaty,  concluded  at  the  Hague,  Oct.  11,  between 
William  III.  of  England,  Holland,  and  Louis  XIV.     In  expectation  of  the 
death  of  Charles  II.  of  Spain — the  last  Hapsburger — without  heirs,  "William, 
doubting  his  ability  to  prevent  Spain  from  coming  under  the  control  of 
France,  consents  to  a  partition  of  the  Spanish  monarchy.     In  general,  Na 
ples  and  Sicily  were  assigned  to  the  Dauphin  of  France,  the  duchy  of  Milan 
to  the  Archduke  Charles  of  Austria,  second  son  of  the  Emperor,  and  Spain, 
with  the  Spanish  Netherlands  and  the  foreign  dependenqies,  to  the  eldest 
son  of  the  Duke  of  Bavaria.     (Dumont,  VII.  2,  442.) 

The  young  Bavarian  prince  died  Feb.  8, 1699,  at  the  age  of  six.  A  new 
treaty  of  partition  between  the  same  powers  (London,  March  13,  the  Hague, 
March  25,  1700)  provided  in  general  that  Naples,  Sicily,  the  duchies  of 
Lorraine  and  Bar,  should  go  to  the  Dauphiri ;  the  Duke  of  Lorraine  should 
be  transferred  to  the  duchy  of  Milan ;  the  crown  of  Spain,  the  Netherlands 
and  Indies  should  fall  to  the  Archduke  Charles.  (Dumont,  u.  s.  477.) 
For  the  claims  or  want  of  claims  of  the  parties  obtruded  upon  Spain  by 
these  treaties,  comp.  Garden,  II.  220  ff. ;  Smyth,  mod.  hist.,  lecture  xxiii. 
No  grosser  instance  of  intervention  is  to  be  found  in  history,  unless  it  be 
the  partition  of  Poland. 

1699,  Jan.  26.     Peace  of  Carlowitz,  consisting  of  a  treaty  of  the  Sultan 
for  a  twenty-five  years'  truce  with  the  Emperor,  of  a  treaty  of  the  same 
with  the  King  of  Poland,  and  of  one  with  Venice  negotiated  by  the  ambas 
sadors  of  the  two  other  Christian  powers.     Prince  Eugene  having  annihi 
lated  the  Turkish  army  atZentha,  Sept.  11,  1697,  the  Sultan  acknowledged 
Transylvania  to  be  an  Austrian  province,  and  agreed  that  the  southern 
bank  of  the  Danube  should  separate  his  dominions  from  Hungary,  etc. 
Venice  retained  possession  of  what  it  held  in  Greece  except  Lepanto,  and 
in  Dalmatia, — where  the  limits  were  fixed  by  a  series  of  forts  ceded  to  the 
Eepublic, — Castel  Novo  and  Eisano,   near  Cattaro,  remained  Venetian. 
(Dumont,  VII.  2,  448-458.) 

1713  and  1714.  Treaties  of  UTEECIIT  and  of  EASTADT,  ending  the 
war  of  succession  to  the  crown  of  Spain,  which  began  in  1701.  Charles  II. 
of  Spain  had  made  a  testament  in  favor  of  the  electoral  prince  of  Bavaria 
as  his  successor,  before  the  death  of  that  boy  in  1699.  Afterward  he  in 
clined  to  the  Archduke  Charles  of  Austria,  and  made  a  will  to  that  effect, 
but  as  Austria  delayed  consenting  to  fulfil  the  conditions,  he  was  persuaded 
by  the  French  party  at  his  court  to  burn  the  will,  and  to  bestow  the  crown 


APPENDIX  n.  383 

upon  Philip,  duke  of  Anjou,  second  son  of  the  Dauphin  of  France,  or  in 
case  of  his  death  without  heirs  or  his  elevation  to  the  throne  in  his  own 
country,  upon  his  next  brother,  the  Duke  of  Berry,  and  so  in  succession  on 
the  Archduke  Charles,  and  on  the  Duke  of  Savoy  and  his  children  who 
were  descended  from  the  sister  of  Philip  II.  of  Spain.  At  all  events,  the 
Spanish  monarchy  was  to  be  kept  entire. 

The  King  of  Spain  died  Nov.  1,  1700,  and  Louis  XIV.  decided,  a  few 
weeks  afterward,  to  accept  the  testament  for  his  grandson,  although  in  the 
spring  of  the  same  year  he  had  been  a  party  to  the  treaty  of  partition,  not 
to  speak  of  the  renunciations  made  in  the  treaty  of  the  Pyrenees.  (See 
that  treaty.)  England  and  other  states  at  first  recognized  the  Bourbon  in 
the  way  of  ceremony  as  king  of  Spain  ;  but  Louis  having  avoided  giving  a 
guaranty  that  the  crowns  of  France  and  Spain  should  be  kept  apart,  having 
also  on  the  death  of  James  II.  of  England  (Sept.  16,  1701),  in  violation  of 
the  peace  of  Ryswick,  acknowledged  his  son  asking  of  England,  a  war  was 
inevitable,  which  the  death  of  William  III.  (March  8,  1702)  could  not  pre 
vent.  An  understanding  between  William,  who  was  the  centre  of  the  Op 
position  to  France,  and  the  Emperor,  led  to  the  grand  alliance,  formed 
Sept.  7,  1701,  to  which  Great  Britain,  Holland,  and  the  Emperor  were  the 
original  parties ;  and  to  which,  afterward,  Denmark,  the  Elector  of  Bran 
denburg  (or  king  of  Prussia),  Portugal,  Sweden,  the  Empire,  Savoy,  etc., 
acceded.  The  main  points  of  the  alliance  were,  to  compensate  the  Emper 
or  for  the  loss  of  the  Spanish  monarchy,  and  so  to  seize  on  the  Spanish 
Netherlands,  the  duchy  of  Milan,  the  two  Sicilies,  and  the  ports  of  Tuscany ; 
to  secure  to  England  and  Holland  all  the  conquests  they  might  make  in 
Spanish  America;  and  to  make  peace  with  France  only  on  condition  that 
the  two  crowns  of  France  and  Spain  should  never  be  united.  The  princi 
pal  allies  of  France  were  the  Elector  of  Bavaria  and  his  brother  the  Arch 
bishop  of  Cologne.  The  Emperor  invaded  Italy  in  1701.  War  was  de 
clared  by  England,  May  4,  1702. 

The  peace  of  Utrecht  consists  of  separate  treaties  made  by  France  with 
Great  Britain,  Portugal,  Prussia,  Savoy,  and  Holland  (April  11, 1713),  and  by 
Spain  with  Great  Britain  (July  13),  and  with  Savoy  (Aug.  13),  which  were 
followed  by  treaties  of  Spain  with  Holland  (June  26,  1714),  and  with  Portu 
gal  (Feb.  6,  1715),  signed  at  the  same  place.  The  treaty  of  Eastadt  (March 
6,  1714),  made  by  the  Emperor,  for  himself  and  the  Empire,  with  France, 
was  modified  slightly  and  finished  at  Baden  in  Switzerland,  Sept.  7,  1714. 

The  most  important  features  of  these  treaties  were  the  following: 

1.  In  her  treaty  with  Great  Britain  (Dumont,  VIII.  1,  339),  France 
ceded  or  restored  to  that  kingdom  Hudson's  bay  and  strait,  St.  Kitts,  Nova 
Scotia  (Acadia),  Newfoundland  with  the  adjacent  islands — reserving,  how 
ever,  Cape  Breton  and  the  islands  in  the  mouth  of  the  St.  Lawrence,  with 
the  right  to  catch  and  dry  fish  on  a  considerable  part  of  the  Newfound- 


384:  APPENDIX  n. 

land  coast.  Dunkirk  is  to  be  dismantled  and  its  harbor  filled  up.  The 
Hanoverian  succession,  as  settled  by  Parliament,  is  acknowledged.  Tbe 
reciprocal  renunciations,  by  Philip  Y.  of  Spain,  of  the  French  crown,  and 
by  the  dukes  of  Berry  and  Orleans  of  the  Spanish,  are  inserted  in  the 
treaty,  and  it  is  declared  to  be  an  inviolable  law  that  the  two  crowns  shall  re 
main  separate  and  disunited. — In  a  commercial  treaty  of  the  same  date  be-» 
tween  the  same  powers  (Dumont,  u.  s.  345),  it  is  stipulated,  that  between 
the  parties  the  ships  of  each  shall  be  free  to  carry  goods  not  contraband 
and  persons  not  military  pertaining  to  the  enemies  of  the  other.  The  same 
principle  is  sanctioned  in  the  commercial  treaty  between  France  and  Hol 
land  of  the  same  date. 

In  the  treaty  between  Spain  and  Great  Britain  (Dumont,  u.  s.  393), 
Gibraltar  and  Minorca  with  Port  Mahon  are  ceded  to  the  latter  power ;  the 
perpetual  separation  of  the  French  and  Spanish  crowns  is  solemnly  pledged ; 
Spain  engages  not  to  transfer,  to  France  or  any  other  nation,  any  land  or 
lordship  in  America;  and  Great  Britain  promises,  in  case  the  line  of  Savoy 
shall  die  out,  to  do  her  best  in  order  to  reunite  Sicily  with  Spain.  (See 
treaties  with  Savoy.)  The  12th  article  has  had  an  unhappy  celebrity;  it 
gives  to  a  British  company,  for  the  space  of  thirty  years  .from  the  date  of 
the  treaty,  a  contract  (el  pacto  de  el  assiento  de  negros)  for  exclusively  sup 
plying  Spanish  America  with  negroes,  on  the  same  terms  under  which  the 
French,  *'.  e.,  the  French  Guinea  company,  founded  in  1701,  had  acted. 

2.  In  the  treaty  of  France  with  Holland  (Dumont,  u.  s.  366),  France 
engages  to  put  into  the  hands  of  Holland  for  the  purpose  of  being  trans 
ferred  to  the  house  of  Austria,  the  Spanish  Netherlands,  as  they  were  after 
the  treaty  of  Eyswick,  except  a  part  of  Guelders  ceded  to  Prussia,  and 
a  tract  in  Luxemburg  or  Limburg  to  be  formed  into  a  principality  for  the 
Princess  Orsini, — which  last  arrangement,  however,  through  the  opposition 
of  Austria,  never  took  effect.    Of  the  French  Netherlands,  Tournay,  Fumes, 
and  their  districts,  Ypres,  Poperingen,  etc.,  were  ceded  on  like  terms 
to  Holland.     France  engaged  to  make  the  Elector  of  Bavaria  abandon  any 
claim  he  had  to  the  Low  Countries  from  an  earlier  Spanish  cession  of  1702 
and  1712;  but  the  town  and  duchy  of  Luxemburg,  Namur  and  its  county, 
and  Charleroi,  were  to  be  under  his  sovereignty  until  he  should  be  restored 
to  his  estates  and  dignities  in  Germany.     The  separation  of  the  crowns  of 
Spain  and  France  was  pledged  both  in  this  treaty  and  in  the  later  one  of 
Spain  with  Holland  (Dumont,  u.  s.  427),  which  was  delayed  by  the  scheme 
of  the  Princess  Orsini,  who  ruled  Philip  Y.,  to  get  for  herself  a  sovereignty 
in  the  Netherlands.     In  this  treaty  Spain  engaged  to  keep  all  other  nations, 
except  the  Dutch,  from  trading  with  the  Spanish  East  Indies. 

3.  The  treaties  with  Portugal  are  of  less  importance.  (Dumont,  u.  s. 
353,  444.)     France  renounces  in  favor  of  Portugal  all  right  to  the  tract 
called  the  Cap  du  Nord,  between  the  Amazon  and  the  Yincent  Pinson  or 


APPENDIX   II.  385 

Japoc,  and  admits  that  the  two  shores  of  the  Amazon  and  the  right  to  navi 
gate  it  belong  to  that  state.  Spain  cedes  to  Portugal  the  territory  and 
colony  of  S.  Sacramento  on  the  north  shore  of  the  La  Plata. 

4.  France  cedes  to  the  king  of  Prussia,  in  virtue  of  power  received  from 
Spain,  Upper  or  Spanish  Guelders,  and  admits  his  right  to  the  principality 
of  Neufchatel  (or  Neuenburg)  and  Yalengin  in  Switzerland.     He,  on  the 
other  hand,  renounces  all  his  pretensions  to  the  principality  of  Orange  and 
its  dependent  lands  in  France,  but  may  bear  the  arms  and  title.     (Dumont, 
u.  s.  356.) 

5.  Spain  (Dumont,  u.  s.  401)  confirms  to  the  Duke  of  Savoy  the  island 
of  Sicily — already  ceded  by  a  special  instrument  made  at  Madrid,  June  10, 
1713.   (Dumont,  u.  s.  389.)     The  sovereignty  is  to  follow  the  line  of  the 
duke  and  his  male  descendants,  and — this  being  extinct — the  male  line  of 
the  Prince  of  Carignan  and  his  brother.     If  the  Savoy  line  die  out,  the 
island  is  to  revert  to  Spain,  and  if  the  Spanish  line  die  out  in  Spain,  the 
house  of  Savoy  shall  succeed  in  that  kingdom.     France  recognizes  the  ces 
sion  of  Sicily  and  restores  to  Savoy  the  territory  conquered  in  the  war : 
the  boundary  of  France  toward  the  county  of  Nice  and  Piedmont  is  deter 
mined  by  the  summits  of  the  Alps ;  and  the  cessions  made  to  the  duke  by 
the  Emperor  in  1703, — viz. :  the  Mantuan  part  of  Montferrat,  the  provinces 
of  Alessandria  and  Yalentia,  the  land  between  the  Po  and  the  Tanaro,  the 
Lomellina,  etc. — are  confirmed  in  both  treaties.   (Dumont,  u.  s.  362.)     The 
Duke  of  Savoy  was  crowned  king  of  Sicily  at  Palermo  in  1713,  but  was  not 
acknowledged  either  by  the  Pope  or  the  Emperor. 

By  the  treaties  of  Kastadt  and  Baden  (Dumont,  u.  s.  pp.  415,  436), 
France  engages  to  leave  the  Emperor  master  of  the  places  and  states  which 
he  occupies  in  Italy, — viz. :  the  kingdom  of  Naples,  the  duchy  of  Milan, 
the  island  of  Sardinia,  the  ports  of  Tuscany, — consents  that  he  shall  take 
possession  of  the  Spanish  Netherlands  according  to  the  treaty  with  Hol 
land,  gives  up  Alt-Breisach,  Freiburg,  the  fortress  of  Kehl,  according  to- 
the  stipulations  of  the  treaty  of  Ryswick,  which  is  made  the  basis  of  ar 
rangements  touching  Germany.  The  Emperor  engages  to  restore  the  Duke 
of  Bavaria  and  the  Archbishop  of  Cologne  to  their  state  before  the  war. 
By  the  treaty  of  Baden,  the  Emperor  is  allowed  to  retain  possession  of  the' 
duchies  of  Mantua  and  Mirandola,  and  the  town  of  Commachio. — No  treaty 
arrangements  were  made  between  the  Emperor  and  Spain,  the  former 
delaying  to  acknowledge  the  Bourbon  king,  and  Philip  V.  not  consenting 
to  the  dismemberment  of  the  Spanish  monarchy  by  which  the  Emperor  was 
a  gainer. 

The  barrier  treaties,  three  in  number,  deserve  a  brief  notice  in  this 
place.  An  article  of  the  grand  alliance  having  promised  to  the  Dutch  a 
barrier  against  France,  the  two  first  barrier  treaties,  made  Oct.  29,  1709, 
and  Jan.  30,  1713,  that  is,  before  the  peace  of  Utrecht,  between  Great 

25 


386  APPENDIX  n. 

Britain  and  the  States  General,  contemplated  giving  to  the  latter  a  number 
of  fortified  places  in  the  Spanish  Netherlands,  with  revenues  for  the  pay 
ment  of  the  garrisons,  to  be  drawn  from  the  country  itself;  and  the  first 
treaty,  by  a  separate  article,  gave  them  the  hope  of  acquiring  Upper  Guel- 
ders  and  some  other  places.  The  second  treaty  diminished  the  number  of 
forts  they  were  to  hold,  and  said  nothing  of  Guelderland,  which  had,  since 
the  first  treaty,  been  promised  to  Prussia.  Both  treaties  pledge  the  States 
General  to  the  maintenance  and  defence  of  the  Protestant  succession  in 
England,  as  by  law  established. 

Both  these  treaties  come  to  nothing.  The  third,  signed  at  Antwerp  by 
Austria,  Great  Britain  and  the  Dutch,  Nov.  15,  1715,  provides  that  the 
latter  shall  transfer  to  Austria  the  Spanish  Netherlands,  both  the  territory 
held  by  Charles  II.  of  Spain  and  that  ceded  by  France, — Austria  engaging 
that  they  shall  remain  under  Austrian  sway  and  never  pass  over  to  France 
or  any  other  power.  An  army  of  about  30,000  men  shall  be  maintained 
there  by  the  Emperor  and  the  Dutch ;  the  former  to  furnish  two  thirds  of 
the  force,  and  the  latter,  one  third.  The  Dutch  shall  garrison  exclusively 
Namur,  Tournai,  Menin,  Furnes,  Ypres,  Warneton  and  the  fort  of  Knock, 
and  in  common  with  Austria  Dendermonde.  They  may  repair  and  fortify 
the  towns  of  the  barrier,  but  not  build  any  new  forts  without  the  Em 
peror's  consent.  He  agrees  to  let  them  occupy  such  forts  and  territory, 
and  to  make  such  intrenchments  and  inundations,  beyond  their  frontiers 
in  the  Austrian  Netherlands,  as  may  be  necessary  in  case  of  the  invasion 
of  those  provinces.  He  also  cedes  to  them  Venlo  and  some  other  places  in 
Guelders,  and  engages  to  pay  for  the  support  of  their  troops  1,250,000 
Dutch  florins,  hypothecated  on  the  revenues  of  the  Netherlands.  It  is  also 
agreed  (article  26)  that  ships  and  cargoes,  going  between  Great  Britain  or 
Holland  and  the  Austrian  Netherlands,  shall  pay  the  same  duties  of  entry 
and  exit  as  at  present,  until  the  three  powers  shall  enter  into  other  arrange 
ments  by  a  commercial  treaty,  to  be  made  as  soon  as  possible, — which 
treaty,  however,  was  never  effected.  Great  Britain  confirmed  and  guaran 
teed  this  treaty.  From  the  failure  to  make  the  commercial  arrangement 
above  spoken  of  Austria  drew  a  pretext  for  regarding  the  barrier  treaty 
as  annulled.  (Dumont,  VIII.  1,  243,  322,  458.) 

1717,  Jan.  4.     The  triple  alliance  between  France,  Great  Britain  and 
Holland,  to  maintain  the  treaty  of  Utrecht  and  defend  one  another  in  case 
of  attack.     France  also  engaged  to  render  no  succor  to  the  Pretender 
and  to  induce  him  to  go  beyond  the  Alps.  (Dumont,  VIII.  1,  484.) 

1718,  Aug.  2.     The  quadruple  alliance,  concluded  at  London  by  France 
and  Great  Britain,  and  so  called  as  intended  to  include  Holland,  which 
acceded,  Feb.  16,  1719,  and  the  Emperor,  who  accepted  the  terms  of  the 
alliance,  Sept.  16, 1718.  (Dumont,  u.  s.  531.)    As  yet  no  peace  had  been 
made  between  the  Emperor  and  Spain.    The  former  was  dissatisfied  with 


APPENDIX    II.  387 

the  arrangements  made  in  Italy,  especially  with  the  giving  of  Sicily  to  the 
Duke  of  Savoy.  Spain,  now  under  the  influence  of  the  intriguing  and  ambi 
tious  Cardinal  Alberoni,  aimed  to  recover  what  she  had  lost  by  the  peace 
of  Utrecht,  and  for  this  purpose  sought  to  disturb  the  politics  of  France 
and  England.  Sicily  and  Sardinia  are  invaded  by  Spanish  troops,  but  the 
fleet  of  that  kingdom  having  been  almost  destroyed  by  the  English,  and 
the  forces  of  both  France  and  England  having  entered  Spain,  the  king, 
finding  his  projects  too  great  for  his  resources,  gives  way,  dismisses  Albe 
roni,  and  accedes  to  the  alliance  in  1720  (Jan.  26).  The  Duke  of  Savoy  had 
done  the  same  in  1718.  Defensive  treaties  in  1721  made  by  Spain  with 
France  and  Great  Britain  complete  the  arrangements  with  those  powers. 
In  conformity  with  the  quadruple  alliance,  and  with  other  treaties  made  in. 
the  same  spirit,  Spain  renounced  the  Low  Countries  and  the  Spanish  part 
of  Italy ;  the  Emperor  renounced  the  monarchy  of  Spain,  cede$  to  Philip 
V.  by  the  peace  of  Utrecht,  and  acknowledged  him  as  lawful  sovereign  of 
that  country ;  Savoy  and  the  Emperor  exchanged  Sardinia  and  Sicily  with 
one  another ;  and  Spain  renounced  its  right  of  reversion  to  Sicily  in  ex 
change  for  a  similar  right  to  Sardinia.  Leghorn  should  be  a  free  port  in 
perpetuity,  and  the  Italian  duchies  of  Tuscany,  Parma,  and  Piacenza, 
where  the  male  lines  of  the  Medici  and  Farnese  family  were  likely  to  be 
come  extinct,  were  to  be  regarded  as  male  fiefs  of  the  Empire,  the  investi 
ture  of  which  should  be  given  to  Don  Carlos  of  Spain,  etc.,  and  in  no  case 
pertain  to  the  crown  of  Spain. 

Thus  by  the  peace  of  Utrecht  and  these  auxiliary  treaties,  (1.)  a  barrier 
was  erected  in  favor  of  Holland  against  France  by  giving  the  Spanish 
Netherlands  to  Austria,  (2.)  France  and  Spain  could  never  be  united  under 
one  monarch  by  the  public  law  of  Europe,  (3.)  the  Emperor  recovered  some 
of  the  old  Germanic  influence  in  the  affairs  of  Italy,  (4.)  the  Duke  of  Savoy, 
with  an  accession  of  power  as  king  of  Sardinia,  became  a  stronger  check 
against  any  designs  of  France  upon  Italy,  and  against  Austrian  predomi 
nance  in  that  peninsula. — The  remaining  minor  differences  between  the 
Emperor  and  Spain  were  discussed  at  the  Congress  of  Cambray  (from  1722, 
onward). 

TREATIES  OF  THE  AGE  OF  ENGLAND'S  MARITIME  PEEPOXDEEANCE  AND  OF 
THE  GROWTH  OF  PRUSSIA. 

1718,  July  21.  Peace  of  Passarowitz,  between  the  Emperor  and  the 
Sultan,  after  Prince  Eugene's  victory  at  Peterwardein  and  capture  of  Bel 
grade.  (Dumont,  u.  s.  520.)  Austria  came  by  this  peace  into  possession 
of  the  Bannat  of  Temeswar,  of  Belgrade,  and  of  a  portion  of  Servia, 
"Wallachia,  etc.  .  4 

1721,  Aug.  30.  Peace  of  Nystadt  in  Finland  between  Sweden  and  the 
Czar, — one  of  several  treaties,  in  which  Sweden,  now  controlled  by  the 


388  APPENDIX  II. 

estates  of  the  realm,  made  terms  with  its  neighbors,  after  the  fall  of  Gortz, 
the  intriguing  ally  of  Alberoni,  and  after  the  death  of  Charles  XII. 
Sweden  in  1719  yielded  to  the  king  of  England,  as  elector  of  Hanover,  the 
duchies  of  Bremen  and  Werden  (see  peace  of  Westphalia)  for  a  million 
rix  dollars  (Dumont,  VIII.  2,  15)  ;  in  1720,  Feb.  1,  to  Prussia,  Stettin  and 
the  lands  in  Pomerania  between  the  Oder  and  the  Pehne,'etc.  for  twice  that 
sum  (Duinont,  u.  s.  21) ;  in  the  same  year  to  Denmark  the  right  of  toll 
over  Swedes  in  the  Sound  and  Belts  with  a  payment  of  600,000  rix  dollars, 
promising  also  not  to  interfere  as  to  Schleswig  and  the  duke  of  Holstein,  in 
consideration  of  Denmark's  abandonment  of  its  Swedish  conquests.  (Du 
mont,  u.  s.  29.)  To  this  peace  France  and  England  were  guarantees.  In 
the  peace  of  Nystadt  (Dumont,  u.  s.  36),  Sweden  ceded  to  Eussia  Livonia, 
Esthonia,  Ingerrnannland,  part  of  Carelia,  Wiborg,  the  isle  of  Oesel,  etc., 
and  received  back  Finland  which  Eussia  had  conquered,  with  two  million 
rix-dollars.  Sweden  enjoyed  peace  for  some  time,  but  fell  henceforth  in 
political  importance  below  Prussia  and  Eussia. 

1735,  Oct.  3.  Preliminary  treaty  of  Vienna,  definitively  signed  Nov.  18, 
1738,  between  the  king  of  France  and  the  Emperor,  to  which  the  kings  of 
Sardinia  and  of  Spain,  and  the  actual  occupant  of  Naples  and  Sicily,  Don 
Carlos,  acceded.  By  this  treaty  the  duke  of  Lorraine,  upon  the  impending 
extinction  of  the  Medici  family  in  the  male  line,  was  to  be  constituted 
grand  duke  of  Tuscany,  with  right  of  succession  in  his  family ;  and  the  exiled 
king  of  Poland,  Stanislaus  Lescinsky,  father-in-law  of  Louis  XV.,  having 
abdicated  his  royal  office,  was  to  be  put  in  possession  of  the  duchy  of  Bar, 
and  of  that  of  Lorraine  also  when  the  above-mentioned  transfer  of  its  duke 
should  take  effect.  On  the  death  of  the  Polish  king  these  duchies  were  to 
be  united  to  the  kingdom  of  France.  Naples  and  Sicily,  with  the  ports  of 
Tuscany  possessed  by  the  Emperor,  were  ceded  to  Don  Carlos,  eldest  son 
of  Philip  V.  of  Spain  by  his  second  marriage  with  Elizabeth  Farnese, 
who  thus  founded  the  second  or  Neapolitan  line  of  Spanish  Bourbons. 
The  king  of  Sardinia  gained  the  territory  of  Novara  and  Tortona  as  fiefs 
of  the  empire,  with  the  territorial  superiority  in  the  district  of  Langhes, 
and  the  Emperor  acquired  Parma  and  Piacenza  in  full  property.  France 
guaranteed  the  pragmatic  sanction  ot  the  Emperor  Charles  VL,  and  most 
of  the  powers  of  Europe  at  different  times  did  the  same  thing.  By  this 
sanction,  having  no  male  heirs,  he  constituted  his  eldest  daughter  the 
inheritor  of  the  entire  mass  of  the  Austrian  monarchy,  and  for  the  sake  of 
it  consented  to  the  abandonment  of  a  large  portion  of  his  dominions  in 
Italy,  as  well  as  to  the  incorporation  of  Lorraine  in  France.  ("Wenck's 
Codex  Juris  Gent.  I.  pp.  1,  88.) 

1742,  June  11.  Preliminary  peace  of  Breslau,  and  July  28,  definitive 
peace  of  Berlin  between  Frederick  II.  of  Prussia  and  Maria  Theresa.  Aus 
tria  ceded  all  Silesia,  lower  and  upper  (not  including  the  principality  of 


APPENDIX  n.  389 

Teschen,  the  town  of  Troppau,  the  tract  beyond  the  Oppa,  and  the  Mora 
vian  districts  enclosed  in  Upper  Silesia),  together  with  the  county  of  Glatz: 
Frederick  to  pay  the  interest  on  the  late  Emperor's  Silesian  debt.  Keligion 
to  remain  as  it  is.— The  peace  of  Dresden  (Dec.  25,  1745)  confirmed  that 
of  Breslau,  and  Frederick  acknowledged  Maria  Theresa's  husband,  the 
grand  duke  of  Tuscany,  as  Emperor.  An  act  of  the  king  of  England 
guaranteeing  Silesia  to  Prussia,  accompanies  the  treaty.  A  treaty  between 
Saxony  and  Prussia,  made  at  the  same  time  and  place,  secured  the  payment 
of  a  million  rix  dollars  from  the  former  to  the  latter,  with  other  advantages. 
(Wenck,  I.  734  et  seq.,  II.  191  et  seq.) 

1748,  April  30.  Preliminary,  and,  Oct.  18,  definitive  peace  of  Aix- 
la-Chapelle,  between  France,  Great  Britain,  and  Holland— Spain,  Austria, 
Sardinia,  Genoa,  Modena  being  accessaries.  (Wenck,  II.  310  et  seq.)  This 
peace  ended  the  war,  which  grew  originally  out  of  the  Austrian  succes 
sion,  by  a  mutual  restitution  of  conquests,  and  general  renewal  of  former 
important  treaties.  The  duchies  of  Parma,  Piacenza,  and  Guastalla  were 
assigned  to  the  Spanish  infante  Don  Philip,  and  were  ceded  by  their  pres 
ent  possessors,  the  Empress  and  the  King  of  Sardinia,  (the  latter  as  hold 
ing  by  the  treaty  of  Worms  in  1743  the  city  and  part  of  the  duchy  of  Piacen 
za),  with  the  right  of  reversion  to  the  said  present  possessors  in  case  Don 
Philip  should  die  without  male  children,  or  in  case  the  King  of  the  Two 
Sicilies  should  inherit  the  throne  of  Spain.  Among  the  renewals  of  former 
stipulations,  that  of  the  assiento  contract  (see  treaty  of  Utrecht)  was  ex 
pressly  named,  a  misunderstanding  concerning  which  had  been  one  of  the 
causes  of  the  war  with  Spain  on  the  part  of  England  in  1739.  "Never 
perhaps,"  says  Lord  Mahon,  speaking  of  this  peace,  "  did  any  war,  after  so 
many  great  events,  and  so  large  a  loss  of  blood  and  treasure,  end  in  re 
placing  the  nations  engaged  in  it  so  nearly  in  the  same  situation  as  they 
held  at  first." 

1759,  Oct.  3.  Treaty  of  Naples  between  Austria  and  Charles  III.  of  Spain 
and  the  Two  Sicilies.  The  Two  Sicilies- can  never  be  united  to  the  crown 
of  Spain,  except  in  case  the  line  of  Spanish  kings  of  the  present  house 
shall  be  reduced  to  one  person,  and  shall  then  be  separated  again,  as  soon 
as  a  prince  shall  be  born  who  is  not  king  of  Spain  nor  heir  presumptive. 
(Wenck,  III.  206.) 

1761,  Aug.  15.  Treaty,  at  first  secret,  between  France  and  Spain, 
known  as  the  family  compact,  to  which  the  accession  of  the  king  of  the 
Sicilies,  and  the  duke  of  Parma,  the  Spanish  king's  two  sons,  were  to  be 
procured,  but  no  one  except  a  Bourbon  should  be  invited  to  join  in  it. 
This  treaty  bound  the  parties  to  a  very  close  offensive  and  defensive  alli 
ance,  with  the  furnishing  of  a  definite  number  of  troops  on  demand  of 
either  party,  and  contemplated  a  guarantee  of  the  dominions  of  each  and  of 
the  two  other  Bourbon  sovereigns.  (Wenck,  III.  278  et  seq. ;  Martens,  Rec. 


390  APPENDIX  n. 

I.  16-28.)  In  a  secret  convention  of  the  same  date  it  is  said  to  have  been 
stipulated,  that  if  France  should  still  be  at  war  with  England  on  the  1st  of 
May,  1762,  Spain  should  declare  war  against  the  latter,  and  that  France 
should  at  the  same  time  restore  Minorca  to  Spain. 

1763,  Feb.  10.  Peace  of  Paris,  between  France,  Spain,  England,  and 
Portugal,  and 

1763,  Feb.  15.  Peace  of  Hubertsburg  (a  hunting  chateau  near  Meissen  in 
Saxony).  By  the  first,  the  great  contest  between  France  and  England,  all 
over  the  world,  to  which  Spain  and  Portugal  became  parties,  was  closed 
greatly  to  the  advantage  of  England  ;  and  by  the  second,  the  seven  years' 
war  of  Austria  and  its  powerful  allies  against  Frederick  the  Great.  Of 
these  allies,  France,  against  its  immemorial  policy,  had,  in  May,  1756,  be 
come  one. 

By  the  peace  of  Hubertsburg,  Prussia  ended  the  war  with  no  loss  of 
territory,  standing  where  she  stood  after  the  treaties  of  Dresden,  Ber 
lin,  and  Breslau. 

By  the  peace  of  Paris,  England,  which  had  stripped  France  of  a  con 
siderable  part  of  her  colonial  possessions,  retained  many  of  them,  and  re 
ceived  a  large  accession  of  power,  especially  on  the  western  continent.  In 
North  America,  France  renounced  her  pretensions  to  Acadia,  ceded  Cana 
da,  Cape  Breton,  and  the  islands  and  coasts  of  the  St.  Lawrence,  retaining 
the  right  of  fishery  on  part  of  the  coast  of  Newfoundland  according  to  a 
stipulation  of  the  treaty  of  Utrecht,  and  also  the  same  right  in  the  Gulf  of 
St.  Lawrence,  three  leagues  away  from  British  coasts,  and  at  a  distance  of 
fifteen  leagues  from  Cape  Breton.  The  islands  of  St.  Pierre  and  Miquelon 
also  were  to  be  retained  by  France,  as  shelters  for  her  fishermen,  but  might 
not  be  fortified.  The  Canadian  Catholics  were  to  be  left  free  to  enjoy  their 
religion.  (Articles  4-6.)  The  middle  of  the  Mississippi,  from  its  source  to 
the  Iberville,  and  a  line  thence,  through  Lakes  Maurepas  and  Pontchartrain 
to  the  Gulf  of  Mexico,  were  to  bound  the  territory  of  the  two  nations. 
Only  New  Orleans  on  the  western,  bank  of  the  Mississippi  was  to  remain 
French.  (Art.  7.)  By  a  secret  treaty  with  Spain,  of  Nov.  3,  1762,  France 
had  already  ceded  Louisiana  and  New  Orleans  to  that  kingdom,  but  pos 
session  of  them  was  not  taken  until  1769.  This  was  a  set-off  for  Spain's 
cession  of  Florida  to  Great  Britain,  which  had  been  already  decided  upon 
and  which  this  peace  concluded.  (Art.  20.)  Great  Britain  agreed  to  re 
store  to  France  Guadeloupe,  Mariegalante,  Desirade,  Martinique,  Belleisle, 
St.  Lucia,  and  received,  by  way  of  cession,  Granada,  St.  Vincent,  Domi 
nique  and  Tobago  (Art.  8,  9),  in  the  "West  Indies.  In  Africa,  Goree  was  re 
stored  to  France,  and  Senegal  retained.  (Art.  10.)  In  the  East  Indies,  the 
forts  and  factories  owned  by  France  in  1749  on  the  coasts  of  Coromandel, 
Orissa,  and  Malabar,  and  in  Bengal,  were  restored,  and  France  engaged  not 
to  build  forts  nor  keep  troops  in  Bengal,  and  renounced  all  acquisitions 


APPENDIX    II.  391 

made  in  Coromandel  and  Orissa  since  1749.  (Art.  11.)  Dunkirk  was  to 
be  put  in  the  condition  stipulated  in  the  treaty  of  Aix-la-Chapelle  and 
earlier  treaties  ;  Minorca  to  be  restored  to  the  English ;  the  places  occupied 
in  Germany  by  the  French  to  be  evacuated  and  restored ;  Cuba,  as  far  as 
conquered  by  England,  to  be  ceded  back  to  Spain  ;  the  forts,  erected  by  the 
English,  in  the  Bay  of  Honduras  and  other  places  of  Spanish  America,  to 
be  demolished  ;  but  their  workmen  were  to  be  unobstructed  in  cutting  and 
transporting  dye  or  cam  wood,  and  no  right  of  fishery  near  Newfoundland 
was  to  be  allowed  to  Spanish  subjects.  (Art.  12-19.  Wenck,  III.  329, 
Martens,  Rec.  I.  104-166. 

1T68,  May  15.  A  treaty  of  this  date,  between  Genoa  and  France, 
yielded  up  Corsica  to  the  sovereignty  of  the  latter  until  the  republic  should 
demand  its  restitution  and  pay  all  expenses.  The  oppressive  Genoese  gov 
ernment  of  the  island  led  to  prolonged  resistance,  which  was  subdued  by 
French  troops,  and  the  islanders  preferred  to  be  freed  from  the  Genoese 
yoke.  (Wenck,  III.  714;  Martens,  I.  591). 

1772,  July  15.  First  partition  of  Poland,  arranged  in  treaties  between 
Russia  and  Austria,  and  Russia  and  Prussia,  of  this  date,  made  at  St.  Peters 
burg.  The  treaties,  alleging  as  the  reasons  for  such  a  step  the  security  of 
the  neighboring  states  against  the  discords  and  intestine  war  of  Poland,  de 
clare,  1.  That  Russia  will  take  possession  of  the  remainder  of  Polish  Livonia, 
of  the  part  of  the  palatinate  of  Polock  which  is  east  of  the  Dwina,  of  the 
palatinate  of  Witepsk,  the  two  extremities  of  that  of  Minsk,  and  the  whole 
of  that  of  Mscislaw  (or  Mohilev).  The  Dwina  to  the  point  where  the 
provinces  of  Polock,  Witepsk,  and  Minsk  meet,  thence  a  straight  line  drawn 
nearly  to  the  source  of  the  Drujac  (or  Druets),  the  course  of  that  stream 
and  of  the  Dnieper,  are  to  be  the  boundaries  of  the  part  cut  off  toward 
Poland.  2.  Russia  guarantees  to  Austria  a  territory  consisting  of  East 
Galicia  and  Lodomiria.  3.  Russia  guarantees  to  Prussia  Pomerellia  except 
Dantzic,  a  part  of  Great  Poland  lying  westward  of  the  Netze,  the  remain 
der  of  Polish  Prussia,  to  wit,  the  palatinate  of  Marienburg  with  the  town  of 
Elbing,  the  bishopric  of  Warmia  (or  Ermeland),  and  the  palatinate  of  Culm, 
except  Thorn,  which  is  to  remain  a  part  of  Poland.  Poland,  by  this  flagi 
tious  transaction,  lost  five  million  inhabitants  and  a  third  of  its  territory. 
The  diet  of  Poland  was  brought  by  threats  to  give  its  rights  to  a  commit 
tee,  which  in  August,  1773,  obeyed  the  will  of  the  great  powers,  and  con 
sented  to  this  dismemberment.  (Martens,  II.  89  onw.) 

1774,.  July  21.  Peace  of  Kutschuk-Kainarclsche  (a  village  of  Silis- 
tria),  between  Russia  and  Turkey.  Bessarabia,  Wallachia,  and  Moldavia 
were  restored  to  Turkey,  which  engaged  to  protect  the  inhabitants  of  the 
principalities  in  their  religion,  etc.,  to  receive  a  charge  d'affaires  from  the 
governor  or  hospodar  of  each  of  them,  and  to  allow  the  ministers  of  Rus 
sia  resident,  at  Constantinople  to  speak  in  their  favor.  Russia  obtained  free 


392  APPENDIX    II. 

navigation  for  ships  of  commerce  in  the  Black  Sea,  in  the  Propontis  or  Sea 
of  Marmora,  in  the  Danube,  and  in  the  Turkish  waters  generally.  The 
forts  of  Jenicale  and  Kertsch  in  the  Crimea,  the  town  of  Azow  with  its 
district,  the  castle  of  Kinburn  at  the  mouth  of  the  Dnieper  were  ceded  to 
the  same  power.  The  two  powers  acknowledged  the  Tatars  of  the  Crimea, 
Budjack,  Kuban,  etc.,  to  be  independent.  Arrangements  were  made  for  a 
minister  resident  of  Eussia  at  Constantinople,  and  for  consuls  with  their 
interpreters  in  places  of  commerce.  (Martens,  II.  286.  The  original  is  in 
Italian.) 

1779,  May  13.    Peace  of  Teschen  in  Austrian  Silesia,  between  Freder 
ick  the  Great  of  Prussia  and  Maria  Theresa,  Queen  of  Austria.     (Martens, 
II.  661.)      The  electoral  Bavarian  line  of  the   Wittelsbach  house   being 
near  extinction,  the  next  heir  was  the  elector  palatine,  who  had  no  legiti 
mate  children,  and  the  next  to  him  the  duke  of  Zweibriicken  or  Deux- 
Ponts.     The  Emperor  Joseph,  by  making  brilliant  provision  for  the  illegiti 
mate   children  of  the  elector  palatine,  induced  him  to  cede  beforehand  all 
Lower  Bavaria  and  other  territory  to  the  house  of  Austria.     Frederick  the 
Great,  having  won  over  the  duke  of  Deux-Ponts,  in  connection  with  the 
elector  of  Saxony  and  the  duke  of  Mecklenburg,  who  had  claims  to  the 
Bavarian  inheritance,  prepared  to  resist  this  aggrandizement  of  Austria  by 
armed  force.     The  war  of  "  the  Bavarian  succession  "  was  a  show  of  arms 
rather  than  a  war,  and  led  to  the  peace  of  Teschen,  of  which  the  terms 
were  dictated  by  Frederick.  They  were,  in  brief,  (1.)  That  Austria,  instead 
of  a  territory  of  250  German  square  miles,  acquired  a  district  of  34,  be 
tween  the  Danube,  the  Inn,  and  the  Salza.     (2.)  That  Prussia  was  con 
firmed  in  the  right  of  succession  to  the  principalities  of  Baireuth  and  Ans- 
pach,  if  the  existing  families  should  fail.     (3.)  That  Saxony  received  a 
compensation  of  six  million  guilders  for  its  claims,  and  Mecklenburg  ac 
quired  the  right  of  having  a  supreme  court  of  appeal  of  its  own.     The 
Emperor  and  Empire  were  required  to  accede  to  the  treaty,  to  which  also 
the  Empress  of  Russia  and  the  king  of  France  were  mediating  and  guaran 
teeing  parties.     (Comp.  §105.) 

1780,  Feb.  28.      Declaration   of  Russia  introducing  the  first  armed 
neutrality.     (Martens,  III.  158  et  seq.     Comp.  §  174.) 

1782,  Nov.  30.     Preliminary,  and,  Sept.  3,  1783,  definitive  peace  signed 
at  Paris,  in  which  Great  Britain  acknowledged  the  independence  of  the 
United  States,  and  conceded  certain  rights  of  fishery.    (§55.)     Boundaries 
were  fixed,  debts  incurred  before  the  war  could  be  collected,  etc.     (Mar 
tens,  III.  495,  553.) 

1783,  Jan.  20.    Preliminary  treaties  of  the  peace  of  Versailles,  between 
Great  Britain  on  the  one  part,  and  France,  Spain,  and  (Sept.  2,  1783)  Hol 
land  on  the  other.    Definitive  treaties  of  Versailles,  Sept.  3,  1783,  between 
Great  Britain,  France,  and  Spain.    To  France,  Great  Britain  restored  the 


APPENDIX  a  393 

islands  of  St.  Pierre  and  Miquelon  in  full  property,  reaffirmed  the  French 
rights  of  fishery  near  and  on  Newfoundland  as  mentioned  in  the  treaty  of 
Utrecht,  restored  St.  Lucia  and  ceded  Tobago  in  the  West  Indies,  and  re 
covered  Grenada,  St.  Vincent,  St.  Dominique,  St.  Kitts,  Nevis,  and  Mont- 
serrat.  In  Africa,  Senegal  (see  peace  of  Paris,  1763)  was  ceded  back  to 
France,  and  Goree  restored.  In  the  East  Indies  there  was  a  general  resti 
tution  of  conquests  made  from  France  in  the  war.  The  articles  of  the 
treaty  of  Utrecht  and  of  other  subsequent  treaties  relative  to  Dunkirk  wefe 
abrogated.  To  Spain,  Great  Britain  ceded  Minorca  and  Florida ;  Spain  re 
stored  Providence  Island  and  the  Bahama,  and  reaffirmed  the  right  of  the 
English  to  cut  logwood  (see  peace  of  Paris,  1763),  settling  the  limits  within 
which  it  could  be  exercised. — The  Dutch  did  not  make  a  final  peace  with 
England  until  May  20,  1784.  The  status  quo  ante  bellum  was  its  basis, 
excepting  that  Holland  ceded  Negapatam  on  the  coast  of  Coromandel.  (Mar 
tens,  III.  503  onward). 


TREATIES  OF  THE  AGE  OF  THE  FEENCH  REVOLUTION  AND  OF  NAPOLEON. 

1791,  Aug.  27.    Declaration  of  Pilnitz,  signed  by  the  sovereigns  of 
Austria  and  Prussia,  relative  to  interference  in  the  affairs  of  France.  (§46. 
Martens,  V.  260.) 

1792,  Jan.  9.    Peace  of  Jassy,  between  Russia  and  Turkey.    The  left 
bank  of  the  Dniester  is  to  serve  as  the  boundary  between  the  two  sove 
reignties.     Thus  the  tract  between  the  river  and  the  Bug  with  Oczakow 
became  Russian.     (Martens,  V.  291.) 

1793,  Second  partition  of  Poland,  which  appears  in  the  shape  of  trea 
ties  between  Russia  and  the  king  and  republic  of  Poland  (Grodno,  July  13 
and  Oct.  16,  the  latter  a  treaty  of  alliance),  and  of  a  treaty  between  Prus 
sia  and  Poland  (Grodno,  Sept.  25,  1793).     Although,  in  the  treaty  of  ces 
sion  and  limits,  Russia  renounces  for  ever  all  right  or  claim,  under  pretext 
of  any  events  or  circumstances  whatever,  to  any  province  or  the  least  part 
of  the  territory  now  comprised  in  Poland,  and  guarantees  to  maintain 
Poland  in  its  actual  state  ;  yet  the  third  partition  took  place  in  1795,  after 
the  insurrection  in  1794  had  ended  in  the  taking  of  Warsaw  by  the  troops 
of  Suwarrow.     To  this  Russia,  Austria,  and  Prussia  were  parties,  and  by  a 
convention  dated  Petersburg,  Jan.  3  and  Oct.  24,  1795,  they  settled  the 
boundaries  between  their  respective  acquisitions,  which  included  the  whole 
of  Poland  yet  remaining.    Austria  now  held  all  Galicia  and  Lodomiria,  or 
in  general  the  territory  between  the  Vistula  and  the  Bug ;  Russia,  Curland, 
Samogitia,  Little  Poland,  Lithuania,  Volhynia,  a1!  the  territory  east  of  the 
Bug  and  Niemen;  Prussia  that  west  of  the  Niemen  and  of  the  Vistula,  in 
cluding  Dantzig,  Thorn,  and  Warsaw,  the  old  capital.  (Martens,  V.  531  on 
ward  ;  VI.  168  onward.) 


394:  APPENDIX    IL 

1792  and  onward.  Coalition  against  France,  into  which  all  the  states 
of  Europe  successively  entered,  except  Sweden,  Denmark,  Switzerland,  Tus 
cany,  Venice,  and  Genoa.  A  particular  grievance  on  the  part  of  the  Ger 
man  empire  was  the  disregard  shown  by  the  Constituent  Assembly  for  the 
rights  of  princes  of  the  empire  holding  lordships  in  Alsace,  besides  which 
the  fear  and  dislike  of  French  revolutionary  principles,  especially  after  the 
death  of  Louis  XVI.,  Jan.  21,  1793,  acted  on  all.  In  the  course  of  the  war 
republican  France  conquers  the  Austrian  low  countries,  Holland  (which  is 
revolutionized  and  becomes  an  ally),  Savoy,  and  other  territory  on  the  fron 
tiers,  Lombardy,  Modena  and  the  legations  of  the  Papal  state ;  constitutes 
the  Cisalpine  republic  ;  forces  a  number  of  its  foes  to  a  suspension  of  arms 
or  to  peace  and  alliance ;  and  is  stripped,  together  with  its  confederate, 
Holland,  of  foreign  possessions  by  the  naval  power  of  England,  which  also 
annihilates  the  fleets  of  Holland  and  of  Spain.  Spain  made  peace  with 
France  in  1795,  and  became  an  ally  by  the  treaty  of  St.  Ildefonso,  August 
19,  1796.  The  most  noticeable  treaties,  by  which  this  grand  coalition  was 
weakened  or  broken,  were  those  of  France  with  Prussia  and  with  Austria. 
Those  with  Sardinia  and  with  the  Pope  also  deserve  mention. 

1795,  April  5.  Peace  of  Basel  between  France  and  Prussia.  Prussia 
promises  to  furnish  no  aid  to  the  enemies  of  the  French  republic,  nor  to 
allow  them  a  passage  through  her  territories.  French  troops  may  continue 
to  occupy  territory  on  the  left  bank  of  the  Rhine  belonging  to  the  Prus 
sian  king,  until  a  general  pacification  shall  take  place  between  the  Empire 
and  France.  The  two  contracting  parties  will  unite  their  efforts  to  remove 
the  theatre  of  war  from  the  north  of  Germany.  The  republic  will  accept 
of  the  good  offices  of  the  king  of  Prussia  in  favor  of  princes  of  the  Empire 
who  seek  his  intervention,  in  the  desire  of  making  peace  with  France,  and 
will  regard  as  neutrals  those  princes  and  estates  west  of  the  Rhine,  in  favor 
of  wrhom  the  king  shall  intercede.  By  a  treaty  of  May  17,  made  by  the 
same  powers,  at  the  same  place,  a'line  of  demarcation  was  drawn  through 
the  middle  of  Germany,  and  the  French  engaged  to  regard  as  neutrals 
those  states  lying  to  the  north  of  this  line  who  should  observe  a  strict  neu 
trality,  as  well  as  those  on  the  right  bank  of  the  Main  situated  within  the 
line.  Four  routes  were  left  open  for  French  and  German  troops  along  the 
Rhine  by  way  of  Frankfort,  and  along  the  right  bank  of  the  Main. — This 
treaty  gave  up  the  left  bank  of  the  Rhine  to  France,  separated  the  North 
from  the  South  of  Germany,  and  placed  Prussia  in  a  position  to  profit  by 
any  changes  which  might  be  effected  in  the  Empire  in  consequence  of 
French  conquests.  (Martens,  VI.  45-52.) 

1795,  July  22.  Peace  between  France  and  Spain,  made  at  the  same 
place.  The  French  restore  the  places  beyond  the  Pyrenees  occupied  by 
French  troops,  and  Spain  cedes  to  France  the  Spanish  part  of  St.  Domingo. 
The  French  republic  is  thus  acknowledged  by  the  Bourbon  house  of  Spain. 
(Martens,  VI.  124.) 


APPENDIX  n.  395 

1796,  May  15.    Treaty  of  peace  signed  at  Paris  between  the  king  of 
Sardinia  and  the  French  republic  (Martens,  VI.  211),  by  which  the  former 
renounces  the  coalition ;  cedes  to  France  Savoy,  with  the  counties  of  Nice, 
Tende,  and  Beuil ;  agrees  upon  the  boundary  line  between  the  two  states ; 
engages  to  exclude  French  emigres  from  his  territories  ;  gives  the  right  of 
transit  to  French  troops  through  his  lands  to  and  from  Italy ;  and  suffers  a 
number  of  important  fortresses  to  be  occupied,  until  treaties  of  commerce 
and  of  general  peace  shall  be  completed.    The  Batavian  republic  is  com 
prised  in  this  and  other  treaties,  in  accordance  with  a  provision  in  the  treaty 
of  alliance  between  the  two  republics,  signed  at  the  Hague,  May  16,  1795 
(Martens,  VI.  88),  that  no  peace  can  be  made  by  France  with  any  of  the 
coalitionists,  in  which  the  republic  of  the  United  Provinces  shall  not  be  in 
cluded. 

1797,  Feb.  19.    Treaty  of  peace  between  France  and  the  Pope,  signed 
at  Tolentino  (in  the  Papal  state,  and  in  the  delegation  of  Macerata).     The 
terms  had  been  adjusted  in  part  in  the  suspension  of  arms  made  at  Bologna, 
June  23,  1796.     (Martens,  VI.  239,  241.)    The  Pope  agreed  to  renounce 
the  coalition,  to  cede  Avignon  and  the  Venaissin  (§  54),  as  well  as  the  le 
gations  of  Bologna,  Ferrara,  and  Romagna,  to  France,  to  allow  Ancona  and 
its  territory  to  be  occupied  by  French  troops  until  the  event  of  a  continent 
al  peace,  to  pay  thirty-one  millions  of  livres  besides  five  already  paid  since 
the  armistice,  to  hand  over  a  hundred  works  of  art  and  five  hundred  manu 
scripts,  etc. 

1797,  April  17.  Preliminaries  of  a  peace  between  the  French  republic 
and  the  Emperor,  agreed  to  at  Leoben,  a  small  town  in  Styria.  The  de 
finitive  peace  followed,  made  and  signed  near  Campo  Formio  in  Friule, 
Oct.  17,  1797.  (Martens,  VI.  3S5,  420.)  In  this  important  treaty  (1.)  the 
Austrian  Netherlands  are  ceded  to  France.  (2.)  Venice  having  been  lately 
extinguished  by  Bonaparte,  its  territory  is  divided  between  the  contracting 
parties  and  the  Cisalpine  republic,  established  June  29, 1697.  The  French 
take  the  Venetian  islands  in  the  Levant — Corfu,  Zante,  Cephalonia,  Santa 
Maura,  Cerigo,  etc.,  and  in  general  all  the  Venetian  establishments  in  Al 
bania  situated  below  the  Gulf  of  Lodrino,  and  the  Austrians  take  Istria, 
Dalmatia,  the  Venetian  islands  of  the  Adriatic,  the  mouths  of  the  Cattaro, 
the  city  of  Venice  with  the  lagoons,  and  its  territory  on  the  Italian  main 
land  east  and  north  of  the  Adige  and  the  lago  di  Garda.  (3.)  The  Empe 
ror  acknowledges  the  Cisalpine  republic,  and  renounces  all  claims  which  he 
may  have  had  before  the  war  to  territory  incorporated  into  it,  This  repub 
lic  includes  Austrian  Lombardy,  the  districts  of  Bergamo,  of  Brescia  (both 
Venetian)  and  of  Cremona,  Mantua  with  its  fortress  and  district,  Peschiera, 
the  part  of  the  Venetian  possessions  in  Italy  lying  to  the  east  and  south  of 
the  lands  newly  ceded  to  Austria,  Modena,  Massa,  Carrara,  the  legations  of 
Bologna,  Ferrara.  and  Komagna.  Bonaparte  had  already  severed  Chia- 


396  APPENDIX    II. 

venna,  the  Vatteline,  and  Bormio  from  the  Grisons,  and  invited  them 
to  join  the  Cisalpine  republic.  (4.)  The  Emperor  binds  himself  to  cede  to 
the  duke  of  Modena  the  Breisgau,  as  an  indemnity  for  his  former  posses 
sions  in  Italy.  (5.)  There  shall  be  a  congress  held  at  Rastadt,  to  be  com 
posed  of  plenipotentiaries  of  France  and  the  Empire,  in  order  to  make 
peace  between  these  powers.  (6.)  In  secret  articles  agreed  upon  at  the 
same  time,  the  Emperor  consents  that  the  left  bank  of  the  Rhine  from 
Switzerland  to  the  Nette  above  Andernach,  comprising  the  tete  de  pont  of 
Mannheim,  and  the  town  and  fortress  of  Mainz,  shall  belong  to  France,  and 
engages  to  try  Jo  induce  the  empire,  in  the  congress  to  be  assembled,  to 
agree  to  this  line  of  boundary.  The  Emperor  also  promises,  when  a  peace 
with  the  empire  shall  be  made,  to  cede  to  France  the  Frickthal  (in  the  can 
ton  of  Argau,  Switzerland),  and  other  contiguous  possessions  of  Austria, 
in  order  to  be  united  to  the  Helvetian  republic.  He  also  cedes  to  France 
the  county  of  Falkenstein.  France,  on  the  other  hand,  will  endeavor  to 
procure  for  the  Emperor  the  bishopric  of  Salzburg,  and  the  part  of  Bavaria 
lying  between  that  bishopric,  the  Inn,  the  Salza,  and  Tyrol.  In  case  the 
territory  of  Prussia  beyond  the  Rhine  shall  be  restored  to  her,  which  the 
French  are  willing  to  do,  she  shall  have  no  claim  to  new  acquisitions.  In 
demnifications  are  to  be  made  to  estates  of  the  empire,  who  shall  have  lost 
territory  by  this  peace  or  by  the  contemplated  peace  with  the  empire. 

The  Congress  of  Rastadt  was  opened  Dec.  9,  1797",  and  closed  with  no 
definite  result  in  April,  1799.  For  the  atrocious  murder  of  two  of  the 
French  negotiators  on  their  way  home,  comp.  §  92,  e.  Between  these 
dates  Switzerland,  Rome,  and  Naples  had  been  transformed  respectively 
into  the  Helvetic,  Roman,  and  Parthenopsean  republics,  the  two  last  of 
which  were  almost  as  short-lived  as  Jonah's  gourd ;  the  king  of  Sardinia, 
worried  out  by  French  aggressions,  had  renounced  his  authority  in  Pied 
mont,  in  favor  of  a  provisory  government,  and  gone  over  to  the  island  of 
Sardinia;  an  expedition  under  Bonaparte  had  been  sent  to  Egypt;  and 
Austria  had  decided  to  join  a  second  coalition  to  which  Russia,  England, 
Naples,  and  Turkey  were  parties.  The  French  were  almost  driven  out  of 
Upper  Italy  by  Suwarrow,  Rome  and  Naples  were  rescued  from  their  sway, 
but  the  withdrawal  of  the  Emperor  of  Russia  from  the  alliance,  and  the 
great  victories  of  Bonaparte,  now  first  consul,  at  Marengo  (June  14,  1800), 
and  of  Moreau  at  Hohenlinden  (Dec.  2,  1800),  disposed  Austria  to  peace. 

1800,  Dec.  16.  Conventions  of  Russia  with  Sweden  and  Denmark,  and 
on  the  18th  of  Dec.  with  Prussia,  constituting  the  second  armed  neutrality. 
The  account  of  this  transaction  in  §  191  is  erroneous,  the  mistake  of  Heff- 
ter  being  copied.  The  parties  to  this  league  declared  the  same  principles 
which  are  spoken  of  in  §  174,  as  the  basis  of  the  first  armed  neutrality, 
and  with  them  another — that  the  declaration  of  an  officer  commanding  a 
public  convoying  vessel  to  the  effect  that  there  is  no  contraband  on  board 


APPENDIX  n.  397 

of  the  ships  under  his  protection  shall  be  sufficient  security  against  all 
search.  Then  follow  agreements  to  arm,  to  defend  one  another,  and  to 
notify  the  belligerents  of  the  league,  etc. 

Then  followed  the  battle  of  Copenhagen,  etc.,  as  mentioned  in  §  191,  and 
then,  in  1801,  June  17,  a  convention  was  concluded  between  England  and 
Eussia,  Denmark  and  Sweden  acceding,  the  leading  features  of  which  are 
given  in  §  191,  but  are  erroneously  confounded  with  the  agreements  of  the 
armed  neutrals  themselves  respecting  convoy.  (Martens,  Eec.  VII.  172- 
196,  260-280.) 

1801,  Feb.  9.    Treaty  of  Luneville  between  France  and  the  German 
Emperor,  acting  also,  without  previous  authority  of  the  diet,  for  the  Em 
pire,  which  ratified  the  peace  soon  afterward.  (Martens,  VII.  296.     In  this 
treaty  several  of  the  important  stipulations  of  the  treaty  of  Campo  Formio 
are  repeated.    The  Emperor  cedes  the  Austrian  Netherlands,  the  Frickthal, 
and  the  county  of  Falkenstein ;  the  division  of  Northern  Italy  is  the  same, 
except  that  the  Adige  from  the  point  where  it  leaves  Tyrol  to  the  sea  is  to 
be  the  western  limit  of  Austrian  territory ;  the  duke  of  Modena  is  to  have 
the  Breisgau  as  before ;  indemnifications  are  again  mentioned    as  to  be 
made  by  the  empire  for  princes  whose  territories  had  been  ceded  to  France. 
The  left  bank  of  the  Rhine,  '  from  the  place  where  it  leaves  the  Helvetic 
territory  to  where  it  enters  the  Batavian,'  is  to  be  French.     The  grand 
duke  of  Tuscany,  the  Emperor's  brother,  it  is  agreed,  shall  renounce  his 
duchy,  and  the  parts  of  Elba  dependent  upon  it,  in  favor  of  the  duke  of 
Parma,  and  shall  be  paid  off  by  an  indemnity  in  Germany.     The  treaty  is 
declared  to  embrace  the  Batavian,  Cisalpine,  Helvetic,  and  Ligurian  repub 
lics,  the  independence  of  which  is  guaranteed  by  the  contracting  parties. 
Fiefs  of  the  empire  had  already  been  given  by  the  treaty  of  Campo  Formio 
to  the  Ligurian  republic.    These  fiefs  are  now  renounced  by  the  Emperor 
for  himself  and  the  empire. 

The  arrangements  respecting  the  duke  of  Parma  had  already  been  a 
subject  of  negotiation  between  France  and  the  king  of  Spain,  whose  son-in- 
law  the  fluke  was.  It  was  agreed  by  the  treaty  of  St.  Ildefonso,  of  Oct.  1, 
1800,  that  Parma  and  Louisiana  should  be  ceded  to  France,  and  by  the 
treaty  of  Madrid  (March  21,  1801,  Martens,  VII.  336),  it  was  agreed,  as  in 
the  peace  of  Luneville,  that  the  dukes  of  Parma  and  Tuscany  should  resign 
their  duchies,  that  the  former  should  take  possession  of  Tuscany  with  the 
title  of  king  (afterward  called  king  of  Etruria),  and  that  he  should  cede  to 
France  the  part  of  the  island  of  Elba  belonging  to  Tuscany,  and  be  compen 
sated  for  this  by  Piombino,  then  pertaining  to  the  king  of  Naples. 

1802,  March  27.    Definitive  treaty  of  peace  of  Amiens,  between  Great 
Britain  on  the  one  part,  and  the  French  and  Batavian  republics  and  Spain 
on  the  other.    The  preliminaries  had  been  signed  at  London,  Oct.  1,  1801. 
England  renounces  her  conquests  won  from  the  three  powers,  except 


398  APPENDIX  n. 

Trinidad  and  Ceylon,  which  are  ceded  to  her  by  Spain  and  the  Batavian 
republic  respectively ;  Malta  is  restored  to  the  order  of  St.  John  of  Jeru 
salem  ;  the  territories  of  Portugal  and  Turkey  are  maintained  in  their 
entireness  as  they  were  before  the  war ;  the  boundaries  of  French  and 
Portuguese  Guiana  are  rectified ;  the  republic  of  the  seven  Ionian  islands 
(taken  from  France  by  the  fleets  of  Russia  and  Turkey,  in  1788  and  the 
next  year)  is  recognized ;  a  fair  compensation  is  promised  by  France  to  the 
house  of  Orange  for  its  losses  in  the  Netherlands ;  and  the,  troops  of  France 
are  to  be  withdrawn  from  Rome  and  Naples. — The  peace  of  Amiens  was  a 
mere  truce.  War  was  again  declared  between  England  and  France  in  a 
little  less  than  a  year.  (Martens,  VII.  377,  404.) 

1803,  Feb.  25.  Reces  or  report  of  an  extraordinary  committee  of  the 
Empire  (Reichsdeputationshauptschluss),  ratified  by  the  diet,  March  24, 
and  by  the  Emperor,  April  27.  (Martens,  VII.  435,  onward.)  Several 
treaties,  that  of  Luneville  last  of  all,  had  contemplated  the  giving  of  in 
demnifications  to  dispossessed  German  princes,  and  several  foreign  princes 
were  to  be  provided  for  in  Germany  who  had  lost  their  own  lands.  At 
the  Congress  of  Rastadt  this  -was  a  leading  subject  of  negotiation,  and  it 
was  agreed  to  make  the  indemnities  by  means  of  secularized  ecclesiastical 
territory,  but  the  congress  broke  up  without  anything  being  accomplished. 
To  bring  this  matter  to  a  conclusion,  the  diet  appointed  (Oct.  2,  1801)  a 
deputation  or  committee  of  eight  members,  four  of  them  electors  and  four 
not,  before  whom  came  the  first  plan  of  indemnity,  offered  by  France  and 
Russia  as  mediating  powers,  and  who,  after  several  sets  of  changes  in  the 
project,  presented  the  report  which  the  diet  adopted.  It  was  in  truth  little 
else  than  a  formality,  for  the  whole  scheme  depended  on  the  will  of  Napo 
leon,  with  whom  Russia  now  acted ;  and  while  the  committee  was  sitting, 
the  leading  powers,  or  those  who  were  in  his  good  graces,  got  by  special 
treaties  better  terms  of  indemnity  in  many  cases  than  they  Lad  a  right  to 
demand.  This  transaction  was  in  effect  a  change  in  the  Constitution  of 
Germany,  but  it  loses  its  interest  and  importance  from  the  fact  that  the 
old  Empire  tumbled  to  the  ground  a  little  afterward.  By  this  ^neasure, 
(1.)  all  immediate  church  territory  was  secularized  except  a  little  part  of 
that  of  Mayence,  and,  this  not  sufficing,  all  but  six  of  the  fifty-one  imperial 
towns  and  the  villages  of  the  same  class  lost  their  immediacy  and  were  put 
into  the  hands  of  princes  who  received  compensation.  The  archbishops 
of  Cologne  and  Triers  thus  lost  with  their  territories  their  electoral  digni 
ties.  The  see  of  Mayence  was  transferred  to  Ratisbon,  the  archbishop 
of  which  was  always  to  be  arch-chancellor,  primate  of  Germany,  and  one 
of  the  electors,  and  to  be  the  metropolitan  over  the  former  provinces  of 
Mayence,  Cologne,  Triers,  and  Salzburg.  The  six  towns  remaining  as 
estates  of  the  empire  were  Augsburg,  Nuremberg,  Frankfort,  Hamburg, 
Liibeck,  and  Bremen.  (2.)  OT  the  great  number  of  princes  for  whom  in- 


APPENDIX    II.  399 

demnification  was  thus  found,  we  can  name  only  a  few.  To  the  duke  of 
Tuscany  (see  treaty  of  Luneville)  was  assigned  the  archbishopric  of  Salz 
burg,  Berchtesgaden  enclosed  in  Salzburg,  a  territory  under  a  prince- 
provost,  part  of  the  bishopric  of  Passau,  and  most  of  that  of  Eichstadt.  To 
the  duke  of  Modena  (see  treaty  of  Campo  Formio)  the  Breisgau  and  the 
Ortenau.  To  the  prince  of  Nassau-Dillenburg,  former  stadtholder  of 
Holland  (see  treaty  of  Amiens),  through  the  intervention  of  Prussia,  the 
bishopric  of  Corvey,  Dortmund,  and  various  abbeys.  To  Austria,  in  lieu  of 
the  Ortenau,  conveyed  to  the  duke  of  Modena,  the  bishoprics  of  Trent  and 
Brixen.  To  the  king  of  Prussia,  in  lieu  of  Guelders  and  Cleves,  lying  west 
of  the  Rhine,  the  bishoprics  of  Hildesheim,  Paderborn,  and  in  part  Mini 
ster,  with  several  towns  and  abbeys.  To  the  king  of  England,  as  elector 
of  Hanover,  for  his  claims  on  territory  awarded  to  Nassau  and  Prussia,  the 
bishopric  of  Osnaburg.  To  the  elector  palatine  of  Bavaria,  in  lieu  of  Deux- 
Ponts,  Juliers,  etc.,  the  bishoprics  of  Bamberg,  Freisingen,  Augsburg,  and 
in  part  Passau,  the  properties  of  ecclesiastical  foundations  in  the  city  of 
Augsburg,  various  abbeys,  and  as  many  as  seventeen  towns  or  villages  of 
the  Empire.  To  the  duke  of  Wurtemberg,  the  provostship  of  Ellwangen, 
nine  imperial  towns,  and  seven  abbeys.  To  the  margrave  of  Baden,  the 
bishopric  of  Constance,  lands  east  of  the  Rhine  pertaining  to  the  bishoprics 
of  Basel,  Strasburg,  and  Spires,  a  part  of  the  palatinate  of  the  Rhine, 
with  Heidelberg  and  Mannheim,  ten  abbeys,  seven  towns,  etc.,  by  which 
his  territory  was  nearly  doubled.  To  Hesse-Darmstadt,  the  duchy  of 
Westphalia,  with  some  districts  of  Mayence  and  of  the  palatinate.  To 
Hesse-Cassel,  a  small  part  of  the  territory  of  Mayence.  To  the  duke  of 
Holstein- Oldenburg  the  bishopric  of  Lubeck  (a  Protestant  territory)  and 
some  lands  in  Hanover  and  Minister.  (3.)  A  number  of  new  votes  in  the 
college  of  princes  were  created.  The  electoral  dignity  was  given  to  the 
duke  of  Tuscany,  to  Baden,  "Wiirtemberg,  and  Hesse-Cassel  (with  rever 
sion  to  Hesse-Darmstadt),  while  the  electoral  office  of  the  archbishops  of 
Cologne  and  Triers  fell  with  the  secularization  of  their  territories. 

1803,  April  30.  Treaty  signed  at  Paris  between  the  French  republic 
and  the  United  States  of  America,  touching  the  cession  of  Louisiana.  By 
a  secret  treaty  of  Nov.  3,  1762,  signed  at  Fontainebleau  and  first  published 
in  1836,  France  ceded  to  Spain,  Louisiana  and  New  Orleans.  By  the 
treaty  of  St.  Ildefonso  (Oct.  1,  1800),  Louisiana  was  retroceded  by  Spain 
to  France  (see  treaty  of  Madrid  under  peace  of  Luneville,  1801),  as  part 
of  an  equivalent  for  the  establishment  of  the  duke  of  Parma  in  Tuscany. 
Napoleon  now,  in  the  apprehension,  it  would  seem,  that  England  might 
take  possession  of  this  territory,  conveys  it  to  the  United  States,  "  as  fully 
and  in  the  same  manner  as  it  had  been  acquired  by  the  French  republic." 
The  third  article  of  the  treaty  of  St.  Ildefonso  had  conveyed  it  to  France, 
"  with  the  same  extent  that  it  now  has  in  the  hands  of  Spain,  and  that  it 


400  APPENDIX  n. 

had  when  France  possessed  it,  and  such  as  it  should  be,  after  the  treaties 
subsequently  entered  into  between  Spain  and  other  states  " — which  treaties 
would  relate  to  the  recognition  of  the  duke  of  Parma  as  king  of  Etruria. 
Thus  the  limits  of  the  territory  conveyed  to  the  United  States  are  not  de 
fined  by  a  single  word.  The  inhabitants  were  to  be  admitted,  as  soon  as 
possible,  to  the  enjoyment  of  all  the  rights,  advantages,  and  immunities  of 
citizens  of  the  United  States,  and  in  the  mean  time  to  be  protected  in  the 
enjoyment  of  their  liberty,  property,  and  religion.  The  treaties  made  by 
Spain  with  the  Indians  were  to  be  executed  by  the  United  States.  Ships 
of  France  and  of  Spain  coming  from  those  respective  countries  or  their 
colonies,  and  laden  with  their  products  or  those  of  their  colonies  respec 
tively,  and  the  vessels  of  no  other  nations,  should  be  admitted  for  twelve 
years  into  the  ports  of  entry  of  the  ceded  territory.  By  two  conventions 
of  the  same  date  it  is  agreed  that  the  United  States  shall  pay  France,  by 
the  first,  a  sum  of  sixty  millions  of  francs  (11,250,000  dollars,  at  the  rate  of 
5g-  francs  to  the  dollar),  and  by  the  other  a  sum  which  cannot  exceed  20,- 
000,000  francs,  and  which  is  intended  to  cover  the  debts  due  "  to  citizens 
of  the  United  States  who  are  yet  creditors  of  France  for  supplies,  for  em 
bargoes,  and  for  prizes  made  at  sea,  in  which  the  appeal  has  been  properly 
lodged,  within  the  time  mentioned  "  in  the  convention  of  Sept.  30,  1800, 
etc.  The  treaty  is  signed  in  English  and  French,  but  the  original  is  de 
clared  to  be  in  French.  It  was  ratified  at  Washington,  Oct.  21,  1803.  De 
Garden  (VIII.  50)  informs  us  that  Spain,  in  the  treaty  of  cession  to  France, 
reserved  the  preference  or  refusal  to  herself,  in  case  France  should  allow 
the  territory  to  pass  out  of  her  hands.  All  claim  from  this  source  was  cut 
off  by  the  consent  of  Spain  to  the  alienation,  which  was  given  early  in 
1804.  (Martens,  VII.  end.)  The  treaties  of  1762  and  of  St.  Ildefonso  are 
given  by  De  Garden,  u.  s.  The  latter  at  least  is  not  in  De  Martens. 

1805,  Dec.  26.  Peace  of  Presburg,  between  Austria  and  France.  (Mar 
tens.  VIII.  388.)  In  1802  (Sept.  21)  Piedmont  was  united  to  France- 
all  that  part  of  it  at  least  which  had  not  been  incorporated  in  the  Cisalpine 
republic.  In  1803  war  was  again  declared  by  England  against  France,  and 
in  revenge,  the  electorate  of  Hanover,  although  a  German  state,  was  occu 
pied  by  French  troops.  In  1804  (March  21)  the  Duke  d'Enghien  was 
seized  on  German  territory — in  Baden — and  murdered  after  a  pretended 
sentence.  The  delay  of  Napoleon  to  provide  compensation  for  the  king 
of  Sardinia,  together  with  the  criminal  violations  of  German  territory 
above  mentioned,  facilitated  a  new  coalition  between  England,  Sweden 
and  Eussia,  to  which  Austria  gave  her  adhesion  in  1805.  Meanwhile 
Napoleon  had  become  Emperor  of  the  French  in  1804,  and  in  March,  1805, 
king  of  Italy— which  title  of  kingdom  of  Italy  the  Cisalpine  republic  had 
now  taken.  Lucca  had  been  made  a  hereditary  principality ;  the  Ligurian 
republic  had  been  united  to  France;  Parma,  Piacenza,  and  Guastalla 
had  been  declared  French  territory  by  a  simple  decree  of  the  Emperor ; 


APPENDIX  n.  401 

and  two  of  his  creatures,  the  dukes  of  Wurtemberg  and  of  Bavaria, 
had  of  their  own  movement  taken  the  title  of  king.  The  war  with 
England,  which  did  not  end  until  the  peace  of  Europe  in  1814,  put  a  stop 
to  the  disastrous  attempts  of  Bonaparte  to  recover  St.  Domingo,  anni 
hilated  the  fleets  of  France  and  Spain  at  the  battle  of  Trafalgar,  and  gave 
the  possession  of  a  number  of  French,  colonies  to  the  English.  The  war 
with  Austria  was  decided,  in  a  short  campaign,  by  the  capitulation  of  Ulm 
and  the  battle  of  Austerlitz.  In  the  peace  of  Presburg,  which  soon  follow 
ed,  Austria  (1.)  recognized  the  arrangements  made  by  France  in  Italy,  in 
cluding  the  union  of  territory  to  France — as  in  the  case  of  Piedmont, 
Genoa  (the  Ligurian  republic),  Parma,  and  Piacenza — and  the  new  govern 
ment  organized  in  Lucca  and  Piombino.  (2.)  Austria  renounced  the  part 
of  the  republic  of  Venice  ceded  to  her  by  the  treaties  of  Campo  Formio 
and  Luneville,  which  was  to  be  united  to  the  kingdom  of  Italy.  The 
French  Emperor  was  also  recognized  as  king  of  Italy  ;  but  as  the  crowns 
of  France  and  Italy  were  eventually  to  be  separated,  the  Emperor  of  Ger 
many  engaged  to  recognize  the  successor  whom  Napoleon  should  name 
king  of  Italy.  (3.)  The  electors  of  Bavaria  and  Wurtemberg  having  taken 
the  title  of  king  without  leaving  the  German  confederation,  they  are  rec 
ognized  by  Austria  in  that  quality.  (4.)  Austria  cedes  and  gives  up  to 
the  king  of  Bavaria  the  margravate  of  Burgau,  the  principality  of  Eichstadtr 
part  of  Passau,  Tyrol,  including  Brixen  and  Trent,  Vorarlberg,  and  other 
territory.  To  the  king  of  "Wurtemberg  are  ceded  the  five  towns  of  the 
Danube  so  called,  the  upper  and  lower  county  of  Ilohenberg,  and  other 
territory.  To  the  elector  of  Baden  the  Brisgau  and  the  Ortenau,  the  city 
of  Constance,  and  the  commandery  of  Meinau.  These  three  powers  shall 
enjoy,  it  is  agreed,  the  same  full  sovereignty  which  the  Emperor  and  the 
king  of  Prussia  have  in  their  estates.  (5.)  Salzburg  and  Berchtesgaden, 
which  had  been  given  by  the  peace  of  Luneville  and  the  report  of  the  de 
putation  of  the  empire,  to  the  duke  of  Tuscany,  are  now  taken  from  the- 
archduke  Ferdinand  and  incorporated  in  the  Austrian  empire.  As  an 
equivalent,  he  is  to  have  the  principality  of  Wurzburg,  which  the  French 
Emperor  engages  to  obtain  for  him  from  the  king  of  Bavaria,  and  the 
electoral  dignity  attached  to  Salzburg  is  to  be  transferred  to  this  new 
territory.  (6.)  The  contracting  powers  dispose  of  two  German  estates  in 
a  very  summary  way.  The  city  of  Augsburg  is  put  into  the  hands  of  the 
Bavarian  king ;  and  the  office  of  grand  master  of  the  Teutonic  order,  with 
its  rights  and  domains,  is  transferred  to  some  prince  of  the  house  of  Austria, 
whom  the  Emperor  shall  designate,  and  in  whose  male  line  it  shall  descend. 
This  humiliating  peace  of  Presburg,  by  which  Austria  lost  23,000  square 
miles  of  territory  and  almost  3,000,000  of  inhabitants,  was  a  prelude  to  the 
complete  overthrow  of  the  German  empire.  In  1806,  July  12,  was  signed 
at  Paris  the  Confederation  of  the  Rhine  (Eheinbund),  consisting  originally 

26 


402  APPENDIX  n. 

of  the  kings  of  Bavaria  and  "Wiirtemberg,  the  grand  dukes  of  Baden  and 
Hesse-Darmstadt,  the  prince  primate  of  Germany  (see  report  of  deputation 
of  empire),  the  duke  of  Berg,  the  princes  of  Nassau-Usingen  and  Nassau- 
Weilburg,  and  many  smaller  princes.  (Martens,  VIII.  480  onw.)  To  these, 
in  time,  were  added  the  elector  of  Wiirzburg — the  Emperor's  brother — 
(see  peace  of  Presburg),  the  elector  of  Saxony  (who  had  leave  from  Napo 
leon  in  Dec.  1806,  to  call  himself  king),  the  dukes  of  Oldenburg  and  Meck 
lenburg;  so  that  Germany  was  now  split  up  into  three  parts:  Austrian, 
Prussian,  and  French  Germany.  The  confederation  of  the  Rhine  was  made 
known  to  the  diet  August  1,  1806,  and  the  members  renounced  their  con 
nection  with  the  German  empire — as  the  league  had  provided ;  soon  after 
which  (Aug.  6)  the  Emperor  published  an  act  declaring  the  empire  extinct, 
laying  aside  the  crown  and  absolving  all  from  their  allegiance.  He  was 
henceforth  Emperor  of  Austria  only,  a  title  which  he  had  assumed  two 
years  before.  The  Rhenish  league  was  to  have  its  own  diet  at  Frankfort ; 
formed  an  alliance  for  all  continental  wars,  offensive  and  defensive,  with 
France  ;  determined  the  contingents  of  the  members,  etc.  Many  estates  of 
the  old  empire  within  the  territory  of  the  confederation  were  mediatized, 
or  brought  under  the  sovereignty  of  some  one  of  its  members :  thus  Frank 
fort  and  Nuremberg  lost  their  independence,  and  the  race  of  knights  hold 
ing  immediately  of  the  empire  (Reichsritter)  was  extinguished. 

1807,  July  7.  Peace  of  Tilsit,  made  by  Russia,  and  July  9,  by  Prussia, 
with  Napoleon.  (Martens,  VIII.  637,  661.)  After  the  peace  of  Presburg, 
Napoleon  proceeded  still  more  boldly  in  his  aggressions  and  plans  of  ag 
grandizement.  The  Bourbons  were  declared  to  reign  no  longer  in  Naples, 
and  his  brother  Joseph  was  made  king  there;  Holland  was  converted  into 
a  kingdom  for  another  brother,  Louis ;  his  sisters  received  principalities  in 
Italy ;  Murat  was  made  grand  duke  of  Berg  ;  and  a  plan  of  creating  an  im 
perial  nobility  out  of  his  generals  and  courtiers,  with  estates  provided  from 
the  conquered  territory,  was  vigorously  pursued.  Toward  Prussia  and 
its  vacillating  king  he  pursued  a  course  of  mingled  insult  and  craft.  He 
took  Anspach  into  his  own  hands  before  a  treaty  permitted  it ;  he  per 
suaded  the  king  to  give  up  Cleve  and  Wesel,  which  were  given  to  Murat, 
on  whom  also  Berg,  ceded  by  Bavaria,  was  bestowed ;  he  required  him  to 
occupy  Hanover,  thus  leading  the  way  to  a  collision  between  Prussia  and 
England.  The  counsels  of  the  patriotic  party  so  far  prevailed  in  Prussia, 
that  war  was  inevitable ;  but  the  aristocracy  was  debased,  the  king  was 
weak,  the  system  of  war  was  antiquated,  and  the  result  was  the  utter  pros 
tration  of  the  country.  The  campaign  of  1806,  by  the  battles  of  Jena  and 
Auerstadt,  and  by  various  capitulations,  made  Napoleon  master  of  most  of 
German  Prussia:  he  entered  Berlin,  and  there  issued  his  decree  called  by 
the  name  of  the  city,  in  pursuance  of  his  continental  system.  (§  189.)  In 
the  autumn  of  1806  his  troops  penetrated  into  Prussian  Poland,  where 


APPENDIX  n.  403 

French  agents  had  stirred  up  an  insurrection,  and  in  1807  the  Russsians, 
Prussia's  only  hope,  were  defeated  at  Friedland.    The  whole  kingdom  was 
now  overrun  and  conquered,  and  the  king  sued  for  peace.    The  conferences 
were  attended  in  person  by  Napoleon,  by  the  czar,  and,  after  the  first  inter 
view,  by  the  king  of  Prussia;  and  the  result  was  that  Alexander,  fascinated 
by  the  genius  of  Napoleon,  and  guided  by  him  in  his  views  of  his  interests, 
practically  abandoned  his  ally,  who  was  thus  forced  to  accept  of  the  most 
humiliating  terms  possible.     By  the  peace  of  Tilsit,  Prussia  renounced  all 
its  territory  on  the  west  of  the  Elbe,  including  Hanover — which  prov 
inces,  with  others  in  Napoleon's  hands,  were  to  constitute  a  kingdom  of 
Westphalia  under  Jerome  Bonaparte — and  renounced  also  the  lands  ac 
quired  by  the  second  and  third  partitions  of  Poland,  with  the  southern 
part  of  West  Prussia.     These  Polish  possessions  constituted  into  a  duchy  of 
Warsaw — except  the  district  around  Bialystock,  which  passed  over  to  Rus 
sia — together  with  the  circle  of  Kotbus  in  Lower  Lusatia,  were  ceded  to 
the  king  of  Saxony,  who  was  to  be  made  grand  duke  of  Warsaw,  and  who 
was  to  have  the  use  of  a  military  road  across  Prussia  between  Saxony  and 
Poland.     Dantz;g,  it  was  agreed,  with  two  leagues  of  territory  around  it, 
should  be  an  independent  district  under  the  protection  of  Prussia  and 
Saxony,  with  its  ports  closed  to  English   commerce  during  the  present 
maritime  war  with  England.     The  rest  of  its  former  territory  was  restored 
to  Prussia,  which  thus  retained  about  half  of  its  population  of  10,500,000. 
It  was  obliged  to  recognize  also  Napoleon's  new  creations,  the  Rhenish  con 
federation,  the  kings  of  Westphalia,  Naples,  and  Holland.     By  conventions 
made  in  1808  (Martens,  nouv.  rec.  I.  102  onw.),  Prussia  was  forced  to 
pay  140  millions  of  francs  "  for  extraordinary  contributions  and  arrears 
of  revenue  " — which  afterward  were  dropped  to  120  millions — and  to  leave 
the  forts  of  Glogau,  Stettin,  and  Custrin  in  the  hands  of  the  French  until 
payment,  under  engagement  to  provision  the  troops  and  to  allow  military 
roads  between  the  places  thus  occupied,  up  to  their  evacuation. 

The  treaty  with  Russia  contains  little  worthy  of  mention  and  not  al 
ready  contained  in  the  treaty  with  Prussia,  unless  that  Napoleon  agreed 
that  the  dukes  of  Saxe-Coburg,  Oldenburg,  and  Mecklenburg-Schwerin 
should  be  restored  to  their  estates,  with  the  provision  that,  as  long  as  the 
war  with  England  should  last,  the  ports  of  the  two  latter  districts  should 
be  occupied  by  French  garrisons.  Also  the  small  lordship  of  Jever  in 
East  Friesland,  which  came  down  to  the  czar  from  his  grandmother, 
Catharine  II.,  was  ceded  to  the  king  of  Westphalia. 

Secret  articles  annexed  to  these  treaties  contain  the  stipulations  that 
the  seven  islands  (Ionian)  shall  belong  to  Napoleon ;  that  if  Hanover 
shall  form  a  part  of  the  kingdom  of  Westphalia,  a  territory  on  the  west 
bank  of  the  Elbe,  containing  from  three  to  four  hundred  thousand  inhabit 
ants,  shall  be  restored  to  Prussia ;  and  that  Prussia  should  make  common 


404:  APPENDIX    II. 

cause  with  France,  in  case  England,  by  Dec.  1,  1807,  should  not  have  con 
sented  to  a  peace  conformable  to  the  true  principles  of  maritime  law.  (De 
Garden,  X.  234,  not  in  Martens.) 

A  treaty  of  alliance  between  France  and  Russia,  made  on  the  same 
day  with  the  treaty  of  peace,  contains  some  noteworthy  provisions:  (1.) 
Eussia  was  to  make  common  cause  with  France,  if,  by  Nov.  1,  1807,  Eng 
land  should  not  have  made  peace  on  the  basis  of  an  equal  and  perfect  in 
dependence  of  all  flags  upon  the  sea,  and  upon  that  of  restoring  to  France 
and  her  allies  conquests  made  since  1805.  (2.)  If  England,  by  the  first  of 
December,  should  not  have  given  a  satisfactory  answer  upon  these  points, 
France  and  Russia  should  summon  the  courts  of  Copenhagen,  Stockholm, 
and  Lisbon  to  close  their  ports  to  the  English,  and  to  declare  war  against  that 
nation.  But  if  England  should  come  to  the  terms  of  the  allies,  Hanover 
should  be  restored  in  lieu  of  colonies  conquered  from  France,  Holland,  and 
Spain.  It  was  the  knowledge  of  this  article  which  led  England  in  Sep 
tember  of  the  same  year  to  bombard  Copenhagen  and  take  the  Danish 
fleet.  (3.)  In  a  certain  event,  the  two  parties  should  agree  to  remove  all 
the  provinces  of  the  Ottoman  Empire  in  Europe,  except  Roumelia  and  the 
city  of  Constantinople,  from  under  the  Turkish  yoke.  (De  Garden,  X.  235, 
not  in  Martens.) 

Secret  and  somewhat  chimerical  articles  between  the  two  Emperors,  in 
addition  to  these,  are  spoken  of,  which  rest  on  doubtful  evidence.  Russia 
was  to  take  Turkey  and  to  aid  France  by  its  fleet  to  take  Gibraltar  ;  the  Bour 
bons  in  Spain  and  the  house  of  Braganza  in  Portugal  should  give  place  to  a 
prince  of  Napoleon's  blood  ;  the  Pope  should  lose  his  temporal  power,  and 
his  kingdom  be  united  to  the  kingdom  of  Italy ;  the  towns  of  Africa,  as 
Tunis  and  Algiers,  should  be  occupied  by  the  French,  and  given,  at  a  gen 
eral  peace,  as  a  compensation  to  Sardinia ;.  France  should  occupy  Malta  and 
Egypt ;  all  flags  but  those  of  France,  Spain,  Italy,  and  Russia,  should  be 
excluded  from  the  Mediterranean.  Even  an  attack  on  the  British  power 
in  India  was  talked  of. 

1807,  Oct.  27.  Secret  treaties  of  Fontainebleau,  between  France  and 
Spain.  Portugal  was  to  be  divided  into  three  parts  specially  defined  : 
one  was  to  be  given  to  the  king  of  Etruria,  in  lieu  of  Tuscany  transferred 
to  Napoleon  as  king  of  Italy,  one  to  be  bestowed  on  the  vile  Godoy, 
prince  of  Peace,  and  one  unappropriated.  The  second  convention  fixes  the 
number  of  Spanish  and  other  troops  to  be  employed,  etc.  (Martens,  rec. 
YIII.  701.)  Portugal  was  accordingly  occupied  by  Marshal  Junot  in  the 
same  autumn,  and  French  troops,  moving  down  into  the  north  of  Spain 
also,  treat  it  somewhat  as  a  conquered  country.  Another  secret  treaty  is 
said  to  have  contemplated  ceding  the  provinces  north  of  the  Ebro  to  France, 
and  taking  Portugal  in  exchange.  The  royal  family  of  Spain  is  alarmed,  and 
there  is  talk  of  fleeing  to  America.  Tumults  break  out,  Godoy  is  put 


APPENDIX   II.  405 

down,  and,  after  a  series  of  intrigues,  the  king  and  his  son,  who  were  in 
deadly  quarrel,  meet  Napoleon  in  Bayonne  :  the  father  is  induced  to  abdi 
cate  the  crown,  and  the  son,  with  the  two  other  infanti,  signs  an  act  of  re 
nunciation.  A  junta  at  Madrid  is  induced  to  ask  that  Joseph  Bonaparte 
may  be  the  king.  He  is  appointed,  and  Murat  takes  his  place  as  king  of 
Naples.  The  spirit  of  the  Spanish  people  is  roused  against  the  French. 
A  long  war  ensues,  in  which  Portugal  is  wrested  from  the  Trench,  and 
Spain  finally  recovered,  through  the  skill  of  "Wellington,  the  resources  of 
England,  and  the  obstinacy  of  the  Spanish  character.  To  maintain  a  great 
army  in  the  peninsula,  and  be  equal  at  the  same  time  to  his  enemies  on 
the  east,  was  too  much  for  Napoleon,  and  this,  with  the  expedition  into 
Russia,  caused  his  overthrow. 

1809,  Sept.  IV.  Peace  of  Sweden  with  Russia,  made  at  Friedrichshamm 
in  which  Finland  and  West  Bothnia,  with  Aland  and  other  islands,  are  ceded 
to  the  latter  power.  In  1810  Sweden  made  a  peace  with  Napoleon,  in  which 
Swedish  Pomerania  and  the  isle  of  Rtigen  are  restored  to  her,  and  she  agrees 
to  adopt  the  continental  system.  (Martens,  nouv.rec.  I.  19.) 

1809,  Oct.  14.  Treaty  of  Vienna,  between  Austria  and  France,  signed 
at  Schonbrunn  by  Napoleon  Oct.  15,  and  hence  sometimes  called  the  peace 
of  Schonbrunn.  (Martens,  nouv.  rec.  I.  210.)  The  disasters  of  Prussia  in 
the  last  war  with  Napoleon  had  roused  the  spirit  of  the  people,  led  to  a 
better  military  system,  brought  men  more  upright  into  power,  and  given 
rise  to  a  set  of  patriotic  clubs  (Tugendbiinde).  The  same  revival  of  a 
German  feeling  spread  on  every  side,  into  Austria  and  the  lands  of  the 
Rhenish  league.  The  aristocratic  statesmen  of  Germany,  stung  by  the 
haughtiness  of  Napoleon,  encouraged  by  the  war  hi  Spain,  and  thinking 
that  the  people  might  be  induced  to  rise  against  the  oppressor,  brought  on 
by  their  intrigues  the  fourth  war  of  Austria  with  revolutionary  France, 
while  as  yet  the  German  people  was  unprepared  for  it.  In  this  war, 
Prussia  was  forced  to  remain  neutral,  and  Austria  had  no  aid;  for  the 
expedition,  sent  from  England  to  Walcheren,  was  too  late  and  too  unsuc 
cessful  to  be  of  any  use.  In  a  short  campaign  the  Austrians,  although 
little  inferior  to  the  French  at  Aspern  and  TVagram,  became  disheartened, 
and  the  armistice  of  Znaym  prepared  the  way  for  the  peace  of  Vienna  or 
Schonbrunn,  which  Napoleon's  situation  would  have  made  it  desirable  for 
him  to  accept,  had  the  terms  been  less  hard  for  the  other  party.  In  this 
peace — which  was  declared  to  be  common  to  the  confederation  of  the 
Rhine  and  the  other  vassals  of  Napoleon. — (].)  Austria  placed  at  the  dis 
position  of  Napoleon,  for  the  benefit  of  the  confederation  of  the  Rhine, 
Salzburg,  Berchtesgaden,  and  part  of  Upper  Austria,  consisting  of  the  Inn- 
Viertel  and  the  Hausruck-Viertel.  This  territory  was  bestowed  upon 
Bavaria.  (2.)  To  Napoleon,  as  king  of  Italy,  were  ceded  the  county  of 
Gorz  (Gorizia)  and  principality  of  Falkenburg  (Montefalcone),  forming 


406  APPENDIX    II. 

Austrian  Friule,  the  city  and  government  of  Trieste,  Carniola,  the  Yillach 
circle  in  Carinthia,  and  the  country  on  the  right  of  the  Save,  from  where 
it  leaves  Oarniola  to  the  frontier  of  Bosnia,  or  half  of  Croatia,  the  Hun 
garian  littoral.  Fiume,  Austrian  Istria,  etc.  These  became  the  Illyrian  prov 
inces  with  a  separate  French  government.  By  this  cession  Austria  was 
cut  off  from  the  sea,  but  was  allowed,  except  for  English  commerce  and 
products,  to  use  the  port  of  Fiume.  (3.)  To  the  king  of  Saxony  were  ceded 
some  Bohemian  villages  enclosed  in  Saxony,  and  to  the  same  king,  as  duke  of 
Warsaw,  Western  or  New  Galicia,  a  district  around  Cracow,  and  a  circle 
in  East  Galicia.  ,Wieliczka  and  the  salt  mines  were  to  be  common  to 
Austria  and  the  Polish  duchy.  (4.)  To  Russia  was  ceded  a  territory  in  the 
most  easterly  part  of  old  Galicia,  which  should  contain  400,000  inhabit 
ants,  and  not  include  the  town  of  Brody.  (5.)  The  Teutonic  order  having 
been  suppressed  within  the  confederation  of  the  Ehine,  the  Emperor  of 
Austria  renounces  on  the  part  of  the  Archduke  Antony,  who  was  the 
grandmaster,  this  dignity  conferred  by  the  peace  of  Presburg,  and  consents 
to  the  disposition  of  the  property  beyond  the  limits  of  Austria  which  had 
been  made.  The  employes  of  the  order  had  pensions  promised  to  them. 
— In  separate  and  secret  articles  (De  Garden,  XII.  136),  the  Emperor  of 
Austria  submits  to  a  military  contribution  of  85  millions  of  francs,  and 
agrees  to  reduce  his  army  to  the  number  of  150,000  of  all  kinds  of  troops 
so  long  as  the  maritime  war  of  France  with  England  should  continue. 
By  this  peace  Austria  lost  over  43,000  square  miles  of  territory,  with 
4,500,000  inhabitants.  The  Tyrolese,  who  were  making  a  heroic  resistance 
against  France  and  Bavaria,  were  given  up  to  their  fate. 

1812,  May  18.  Peace  of  Bucharest,  between  Russia  and  Turkey.  The 
boundary  was  to  follow  the  Pruth,  from  the  point  where  it  came  out  of 
Moldavia,  to  the  Danube,  and  the  Danube  to  the  sea.  In  this  way  Bessa 
rabia,  and  a  small  strip  of  Moldavia,  with  the  fortresses  of  Choczim  and 
Bender,  became  Russian.  Other  conquests  were  restored.  Servia  was  to 
remain  Turkish,  but  with  the  interior  administration  in  the  hands  of  the 
inhabitants.  (Martens,  n.  r.  III.  397.) 


TREATIES  OF  1814  AND  1815,  CONTAINING  THE  GREAT  SYSTEM  OF  PACIFICATION 
AND   READJUSTMENT  WHICH   FOLLOWED   THE   DOWNFALL   OF   NAPOLEON. 

The  peace  of  Schonbrunn  humbled  the  last  enemy  capable  of  offering 
serious  resistance  upon  the  land  to  the  decrees  of  Napoleon  ;  and  the  con 
sent  of  the  Emperor  of  Austria  soon  afterward  to  give  his  daughter  in 
marriage  to  the  French  Emperor  at  once  showed  his  weakness  and  seemed 
to  bind  him  to  the  policy  of  the  conqueror.  Even  before  this  fourth  war 
with  Austria,  Napoleon  had  commenced  the  policy  of  uniting  parts  of 


APPENDIX    IL  407 

Europe  to  his  empire,  instead  of  controlling  them,  as  he  had  done  at  first, 
by  his  vassals.  A  decree  dated  May  IT,  1809,  from  his  camp  at  Vienna, 
incorporated  the  Papal  states  into  his  dominions.  Other  portions  of  Italy 
were  subjected  to  the  same  process.  The  Swiss  district  of  Yalais  was  ab 
sorbed  in  the  autumn  of  1810.  In  March  of  the  same  year  (Martens,  Nouv. 
rec.  I.  32Y)  he  forced  his  brother  Louis  to  cede  to  France  all  of  the  king 
dom  of  Holland  lying  to  the  left  of  the  Waal,  or  Dutch  Brabant,  Zeeland, 
and  part  of  Guelders.  Soon  after  the  abdication  and  flight  of  Louis  (July  9, 
1810),  the  whole  of  Holland  was  made  French  territory.  (Martens,  u.  s. 
338.)  A  decree  of  the  Senate  of  France  subjected  to  the  same  fate  all  the 
north  coast  of  Germany,  as  far  as  to  the  sea  near  Liibeck,  comprising 
Oldenburg,  the  Hanse  towns,  Werden,  parts  of  Hanover  and  Westphalia, 
Lauenburg,  etc.  (Martens,  u.  s.  346.)  Against  this  high-handed  proceed 
ing  in  regard  to  the  duke  of  Oldenburg,  the  Emperor  Alexander,  his  near 
connection,  protested,  who  had  already  taken  offence  at  the  enlargement 
of  the  grand  duchy  of  Warsaw,  effected  at  the  peace  of  Schonbrunn.  He 
now  instituted  a  commercial  policy  hostile  to  the  views  of  Napoleon,  and 
in  1811  preparations  were  made  on  both  sides  for  war.  The  only  powers 
from  which  Russia  could  hope  for  concert  of  action  were  England  and 
Sweden.  Between  England  and  Russia  there  was  no  difficulty  in  arranging 
an  alliance.  But  Sweden  was  slow  in  incurring  the  resentment  of  Napo 
leon.  At  length,  after  Swedish  Pomerania  had  been  occupied  by  the 
French,  Sweden  made  an  alliance  with  the  czar  (March  12,  1812),  agree 
ing,  in  the  event  of  war,  to  put  30,000  men  into  Northern  Germany,  and 
receiving  the  promise  of  Alexander  that  he  would  aid  her  in  the  acquisi 
tion  of  Norway.  England  and  Sweden  came  together  in  the  peace  of 
Oerebro  on  the  13th  of  July,  1812  (Martens,  u.  s.  431),  and  on  the  13th  of 
March,  1813,  England  made  an  engagement,  similar  to  that  of  Russia 
respecting  Norway,  promising  also  a  subsidy  of  a  million  sterling  to 
Sweden,  and  ceding  to  her  the  island  of  Guadaloupe,  taken  from  the 
French.  (Martens,  u.  s.  558.)  It  was  of  great  importance  in  the  subsequent 
war  that  Sweden  allowed  the  Russian  army,  which  was  in  Finland,  and 
was  to  aid  in  the  conquest  of  Norway,  to  be  employed  in  Poland,  and  that 
the  peace  of  Bucharest  left  another  army  free  to  act  against  the  French 
invader. 

Napoleon,  on  his  side,  made  new  treaties  of  alliance  with  Prussia  and 
Austria.  (Feb.  24,  March  14,  1812,  Martens,  u.  s.  417-431.)  In  the  open 
and  secret  articles  of  the  Prussian  treaty,  it  is  agreed  that  Prussia  shall 
make  common  cause  with  France,  without  being  obliged  to  furnish  troops 
for  wars  in  Italy,  Turkey,  or  beyond  the  Pyrenees ;  that  the  number  of 
such  troops  in  the  field,  in  the  event  of  war  with  Russia,  shall  be  20,000, 
besides  a  large  garrison  force ;  that  these  shall  be  kept  in  one  body  as  much 
as  possible,  and  be  used  in  preference  for  the  defence  of  the  Prussian  prov- 


408  APPENDIX  n. 

inces,  but  shall  be  for  all  new  movements  under  French  control ;  that  any 
part  of  Prussia  included  within  the  lines  of  operations  shall  be  open  to  the 
French  and  their  allies,  except  Upper  Silesia  and  the  city  of  Potsdam ;  and 
that  provisions  and  munitions  of  war  shall  be  furnished  to  the  French 
troops,  to  be  charged  to  the  contributions  yet  due  from  Prussia  according 
to  the  peace  of  Tilsit.  A  promise  is  held  out  of  an  indemnity,  in  the  shape 
of  new  territory,  for  the  expenses  of  Prussia  in  the  war,  should  it  come  to 
a  happy  issue.  The  fortresses  of  Glogau,  Custrin,  and  Stettin  were  still 
held  by  French  garrisons,  and  the  leading  patriots  had  to  quit  the  king's 
presence  and  service.  Austria  stipulated  to  furnish,  as  her  contingent, 
30,000  troops  and  60  pieces  of  cannon,  in  four  divisions,  under  an  Austrian 
commander,  subject  to  the  immediate  orders  of  their  own  sovereign.  The 
integrity  of  Turkey  is  guaranteed.  In  case  of  the  reconstruction  of  the 
kingdom  of  Poland,  Austria  is  to  hold  Galicia,  or,  if  that  should  be  united 
to  the  Polish  monarchy,  the  Illyrian  provinces  in  exchange,  besides  being 
compensated  for  the  costs  of  the  war  by  the  acquisition  of  new  territory. 

Secured  thus  in  his  rear,  and  strengthened  by  the  forces  of  his  allies, 
Napoleon  crossed  the  Niemen,  June  24,  1812,  too  late  in  the  season  for 
success,  and  returned  the  same  autumn  a  fugitive,  his  vast  army  nearly  de 
stroyed  by  war,  famine,  and  cold.  The  wrath  of  the  German  people,  espe 
cially  of  humiliated  Prussia,  now  began  to  burst  forth  against  the  tyrant. 
The  first  impulse  was  given  by  General  York,  commander  of  the  Prussian 
contingent,  who,  on  the  30th  of  December,  1812,  without  the  privity  of  his 
sovereign,  in  a  capitulation  with  the  Russian  general  Diebitsch,  agreed  to 
keep  his  army  neutral  in  a  district  of  East  Prussia,  and  if  the  king  should 
not  sanction  th«  agreement,  at  least  to  observe  the  neutrality  for  two 
months.  (Martens,  u.  s.  556.)  The  king  was  alarmed,  but  dragged  forward 
by  the  boiling  spirit  of  the  people.  A  treaty  made  not  long  after  this  be 
tween  Russia  and  Prussia,  which  has  not  seen  the  light,  provided,  it  is  said, 
that  Prussia  should  recover  the  territory  which  she  held  before  1806,  ex 
cept  Hanover,  and  should  furnish  80,000  men  for  the  war,  against  150,000 
to  be  furnished  by  Russia.  Help  was  to  be  sought  in  the  shape  of  an  alli 
ance  with  Austria,  and  of  subsidies  for  Prussia  from  England.  On  the  19th 
of  March,  1813  (Martens,  u.  s.  564),  a  convention  was  made  between  Russia 
and  Prussia,  in  which  a  proclamation  was  agreed  upon,  inviting  the  princes 
and  people  of  Germany  to  unite  for  the  liberation  of  their  country.  Every 
German  prince,  who  should  not  respond  to  this  appeal  within  a  given  time, 
should  be  menaced  with  the  loss  of  his  estates.  A  council  of  administration 
also  was  provided  for,  fortified  with  unlimited  powers  for  the  carrying  on 
of  the  war,  especially  for  occupying  and  controlling  the  parts  of  Northern 
Germany  yet  under  French  influence.  On  the  27th  of  March  war  was  de 
clared  against  France,  and  the  Prussians  en  masse  formed  an  army  of  vol 
unteers.  The  dukes  of  Mecklenburg,  the  duke  of  Anh alt-Dessau,  the  city 


APPENDIX  n.  409 

of  Hamburg  soon  followed  the  example  of  Prussia.  The  summer  of  1813 
was  full  of  negotiations  relating  to  the  war,  the  principal  of  which  were, 
(1.)  Conventions  at  Reichenbach  in  the  middle  of  June,  between  Great 
Britain  on  the  one  part  and  Russia  and  Prussia  on  the  other.  The  parties 
agree  to  carry  on  the  war  with  energy,  the  first  engaging  to  furnish 
subsidies,  and  the  others  to  have  in  the  field  160,000  and  80,000  soldiers 
respectively.  Prussia  promises  to  aid  the  Brunswick  houses  in  recovering 
their  territory,  and  England  is  to  have  the  use  and  cooperation  of  the  Rus 
sian  fleet.  (Martens,  u.  s.  568.)  (2.)  An  armistice  was  made,  June  5,  be 
tween  the  belligerents,  Austria  acting  as  mediator,  which  was  to  continue 
until  Aug.  10 :  meanwhile  a  peace  congress  sat  at  Prague  without  effecting 
or  being  expected  to  effect  anything.  (Martens,  u.  s.  582.)  (3.)  Austria  at 
length  forsook  Napoleon  decisively,  and  joined  the  alliance  of  the  three 
great  powers  by  treaties  signed  at  Toplitz,  Sept.  9,  agreeing  to  furnish  a 
quota  of  60,000  troops,  and  to  make  no  peace  unless  in  common  with  the 
allies.  (Martens,  u.  s.  596.)  (4.)  Bavaria,  by  a  treaty  with  Austria,  dated 
Oct.  8,  and,  in  the  course  of  the  autumn,  but  not  until  the  battle  of  Leipzig 
had  decided  the  campaign  against  Napoleon,  the  other  members  of  the 
Rhenish  confederation,  joined  the  allies,  and  this  creation  of  the  French 
Emperor  was  dissolved.  (5.)  In  the  winter,  Jan.  11,  1814,  Murat,  king  of 
Naples,  separated  his  cause  from  that  of  Napoleon  in  a  treaty  with  Austria, 
for  the  purpose  of  retaining  possession  of  his  kingdom.  (Martens,  u.  s.  660.) 
(6.)  The  treaties  of  Kiel,  made  by  Denmark  with  Sweden  and  with  Great 
Britain,  Jan.  14,  1814,  and  one  with  Russia,  signed  at  Hanover,  Feb.  8, 

1814,  separated  from  Napoleon  his  last  and  most  honorable  ally.    Denmark 
engaged  to  place  10,000  men  for  the  war  under  the  control  of  Bernadotte, 
prince  royal  of  Sweden,  and  renounced  possession  of  Norway  in  favor  of 
Sweden,  who  in  return  ceded  to  Denmark  Pomerania  and  the  isle  of  Riigen, 
promising  her  good  offices  for  some  further  indemnification.     Great  Britain 
pledged  its  efforts  for  the  same  purpose,  and  restored  all  territory  gained  by 
conquest  from  Denmark,  excepting  the  isle  of  Heligoland.  (Martens,  u.  s. 
I.  667-683.) — Denmark  afterward,  in  a  treaty,  signed  at  Vienna,  June  4, 

1815,  ceded  Swedish  Pomerania  and  Riigen  to  Prussia,  receiving  in  return 
the  duchy  of  Lauenburg,  except  the  amt  or  bailiwick  of  Neuhaus,  together 
with  a  payment  of  two  million  thalers  and  of  a  considerable  sum  of  money 
due  from  Sweden.   (Martens,  u.  s.  II.  349.) 

As  the  allied  armies  reached  the  Rhine  and  entered  France,  various 
negotiations  were  set  on  foot,  looking  toward  peace  and  the  readjustment 
of  the  political  state  of  Europe.  'The  most  important  were,  (1.)  the  con 
gress  of  Chatillon,  from  Feb.  5  to  March  19,  1814,  in  which  Napoleon, 
hoping  still  for  success  in  the  war,  made  too  high  terms,  so  that  nothing 
was  effected.  (Comp.  Martens,  u.  s.  I.  668.).  (2.)  While  this  congress  was  in 
session,  a  new  treaty  was  made  between  the  four  great  powers  at  Chau- 


410  APPENDIX  n. 

mont,  March  1,  1814.  England  was  to  furnish  to  the  other  powers  a  sub 
sidy  of  five  millions  sterling  for  the  year  1814,  and  the  parties  were  to 
keep  in  the  field  an  army  of  150,000  men  each  ;  to  aid  one  another  in  case 
of  attack,  etc.  (Martens,  u.  s.  683.)  Secret  articles  are  said  to  have  settled 
the  relations  of  Europe  on  the  basis  afterward  adopted.  (3.)  The  capitu 
lation  of  Paris,  March  31,  1814.  (4.)  The  abdication  of  Napoleon,  in  a 
treaty  made  by  him  with  Austria,  Russia,  and  Prussia,  April  11,  to  which 
England  acceded,  as  to  the  main  points,  April  27.  Napoleon  renounces  all 
right  of  sovereignty  in  France  and  everywhere  else  for  himself,  his  family, 
and  his  descendants.  His  domains  in  France  are  to  go  to  the  crown.  He  and 
the  Empress  are  to  preserve  their  titles  during  life,  and  his  near  connections 
are  to  be  styled  princes  of  his  family.  The  isle  of  Elba  is  given  him  as  his 
principality,  with  an  annual  revenue  of  two  million  francs,  chargeable  to 
France,  one  half  reversible  to  the  Empress,  and  the  duchies  of  Parma,  Pia- 
cenza,  and  Guastallaare  assigned  to  the  Empress  Maria  Louisa.  From  these 
duchies  their  son  is  to  derive  his  title.  Two  and  a  half  millions  of  francs 
are  granted  as  an  annual  revenue  to  members  of  his  family;  Josephine  also, 
and  Eugene  Beauharnois,  are  provided  for.  Napoleon  is  to  have  an  armed 
corvette  and  a  guard  of  400  men  at  his  disposal.  The  allied  powers  promise 
that  France  shall  adopt  and  guarantee  this  treaty.  (Martens,  u.  s.  I.  696.) 

The  immediate  arrangements  consequent  upon  the  downfall  of  Napoleon 
were  made 

1814,  May  30,  at  the  first  peace  of  Paris,  consisting  of  treaties,  nearly 
identical,  between  France,  now  under  Louis  XVIIL,  and  each  of  the  four 
great  powers.  (Martens,  nouv.  rec.  II.  1-18.)  The  limits  of  France  are  by 
this  treaty  to  be  what  they  were  in  1792,  with  some  augmentations  on  the 
eastern  frontier,  which  are  particularly  specified.  France  renounces  all 
sovereignty  over  districts  in  Europe  outside  of  these  limits:  Monaco  is  to 
be  as  it  was  before  1792,  and  Avignon,  the  Yenaissin,  Montbelliard,  and 
all  other  enclaves  within  these  limits  are  to  be  French  territory.  Great 
Britain  retains  Malta,  Tobago,  and  St.  Lucia,  the  isle  of  France  with  its 
dependencies,  and  the  part  of  St.  Domingo  which  Spain  ceded  to  France  in 
the  treaty  of  Basel  in  1795,  and  which  Great  Britain  engages  to  cede  back 
to  his  Catholic  Majesty.  All  other  places  gained  by  conquest  from  France, 
rights  of  fishery,  etc.,  she  places  on  the  footing  of  1792.  Sweden  restores 
Guadaloupe  to  France,  and  Portugal  restores  French  Guiana,  as  it  was  at 
that  date.  (For  other  arrangements  see  the  next  article.) 

By  a  separate  and  secret  article  of  this  treaty,  which  appears  in  Mur- 
hard's  Nouv.  suppl.  I.  329,  the  disposal  of  the  territories  renounced  by 
France  in  the  open  treaty,  and  the  relations  tending  to  produce  a  system 
of  real  and  durable  equilibrium  in  Europe,  were  to  be  decided  upon  by  the 
allied  powers  among  themselves.  Thus  France  was  to  have  no  voice  in  the 
leading  measures  of  the  coming  Congress.  But  in  fact,  at  the  Congress  of 


APPENDIX   H. 

Vienna,  the  adroit  audacity  of  Talleyrand  and  the  disagreement  of  the 
allies  between  themselves  secured  for  France  a  considerable  amount  of 
influence. 

1815,  June  9.  Final  act  of  the  CONGRESS  OF  VIENNA,  the  most  impor 
tant  document,  in  an  international  respect,  of  modern  times.  The  peace 
of  1814,  just  spoken  of,  provided  for  the  meeting  of  such  a  congress  within 
two  months,  in  order  to  complete  the  arrangements  there  begun,  but  it 
was  not  opened  until  Nov.  1,  1814.  It  closed  June  11,  1815.  Eight  pow 
ers  composed  the  congress,  Great  Britain,  Russia,  Austria,  Prussia,  France, 
Spain,  Portugal,  and  Sweden ;  but  the  Spanish  representative  refused  his 
signature,  on  account  of  the  dispositions  touching  the  three  Italian  duchies 
of  Parma,  Piacenza,  and  Guastalla,  as  well  as  for  other  reasons  affecting  the 
pride  of  Spain.  The  congress  was  for  some  time  seriously  disturb^!  by  the 
claim  of  Russia  to  appropriate  the  entire  grand  duchy  of  Warsaw,  and  of 
Prussia  to  swallow  up  Saxony.  What  should  be  done  with  Belgium  was 
also  a  problem  of  some  difficulty.  In  March  the  alarming  news  reached 
the  congress  that  Napoleon  had  left  Elba,  that  he  had  landed  in  France, 
that  he  had  recovered  his  throne  without  a  struggle.  He  was  put  under 
the  ban  of  Europe,  a  new  compact  was  made  by  the  four  great  powers  with 
many  accessories,  on  the  25th  of  March,  for  the  maintenance  of  the  peace 
of  Paris,  and  in  June  the  field  of  Waterloo  baffled  this  attempt  of  the 
wonderful  man  to  regain  his  lost  power. 

The  Congress  of  Vienna  was  a  meeting  of  dictators  for  arranging  the 
affairs  of  Europe  according  to  their  arbitrary  views,  and  in  effect  required 
the  smaller  powers  to  submit  to  their  decrees,  without  a  share  in  their 
deliberations.  To  perfect  the  arrangements  which  appear  in  the  final  act, 
a  multitude  of  special  compacts  had  to  be  made,  some  of  which  were  an 
nexed  to  that  instrument,  and  declared  to  be  a  part  of  it.  For  the  final 
act  see  Martens,  u.  s.  II.  379 ;  Martens  and  Cussy,  III.  61 ;  Wheaton's  Int. 
Law,  Appendix ;  Kluber's  Acten  des  Wiener-Congress ;  and  comp.  Flassan, 
Hist,  du  Cong,  de  Vienne,  3  vols.  Paris,  1829. 

The  leading  points  of  this  instrument  are  the  following : 

1.  The  grand  duchy  of  Warsaw  was  united,  as  a  kingdom  of  Poland, 
tinder  a  distinct  administration,  to  the  Russian  empire,  with  the  exception 
(1.)  of  the  territory  restored  to  Prussia,  under  the  name  of  the  grand  duchy 
of  Posen ;  (2.)  of  the  districts  in  Eastern  Galicia  taken  from  Austria  by  the 
treaty  of  Schonbrunn  and  now  restored ;  (3.)  of  Cracow  and  a  territory 
around  it,  which  was  constituted  into  a  free  neutral  republic,  the  privileges 
of  which  are  defined  in  a  treaty  annexed  to  the  final  act.  "  The  Poles," 
it  is  stipulated,  "  subjects  of  Russia,  Austria,  and  Prussia,  respectively,  shall 
have  a  representation  and  institutions  of  a  national  character,  regulated  by 
the  mode  of  political  existence,  which  each  of  the  governments,  to  which 
they  appertain,  shall  judge  it  useful  and  suitable  to  grant  to  them." 


4:12  APPENDIX    H. 

2.  Prussia,  having  thus  lost  a  considerable  part  of  its  Polish  spoils,  was 
anxious  to  get  the  whole  of  Saxony  into  its  hands,  whose  king,  as  the  vas 
sal  of  Napoleon,  in  the  new  adjustments  of  Germany  found  no  favor;  but 
Austria  was  jealous  and  prevented  this,  so  that  only  a  part  of  Saxony, 
seven  thirteenths  of  the  territory  and  two  fifths  of  the  population,  became 
Prussian.     The  former  territory  of  Prussia,  such  as  it  was  before  the  peace 
of  Tilsit,  was  in  general  restored.     New  acquisitions  on  the  east  side  of  the 
Rhine,  besides  the  part  of  Saxony  just  spoken  of,  were  a  portion  of  Fulda  and 
of  Hanau,  the  city  of  Wetzlar  with  its  territory,  the  duchy  of  Berg  with 
lands  formerly  belonging  to  the  bishopric  of  Cologne  and  more  lately  in 
corporated  in  this  duchy,  the  duchy  of  Westphalia,  such  as  it  was  under 
the  grand  duke  of  Hesse,  the  county  of  Dortmund,  Corvey,  the  lands  of 
sundry  ^mediatized  princes,  and  the  possessions  of  the  house  of  Nassau- 
Dietz,  ceded  by  the  king  of  the  Netherlands,  or  their  equivalents  received 
in  exchange  for  them  from  other  members  of  the  house  of  Nassau.    On  tho 
west  bank  of  the  Ehine,  Prussia  acquired  a  territory  which  was  formerly  in 
the  main  the  duchy  of  Juliers,  and  part  of  Cleves  and  Guelders  and  of  the 
two  archbishoprics  of  Cologne  and  Treves. 

3.  The  king  of  Great  Britain,  as  king  of  Hanover,  received  from  Prus 
sia,  Hildeshiem,  Goslar,  East  Friesland,  the  lower  county  of  Lingen,  and 
part  of  Prussian  Miinster ;  and  ceded  to  Prussia  the  parts  of  the  duchy  of 
Lauenburg  lying  east  of  the  Elbe,  with  other  smaller  districts.     Lauenburg 
was  soon  transferred  to  Denmark.   (See  peace  of  Kiel,  p.  409.)     The  com 
merce  on  the  Ems,  and  at  Embden,  which  now  became  a  Hanoverian  port, 
was  to  be  open  to  Prussian  merchants  without  restriction,'  and  Hanover 
engaged  to  keep  the  river  in  a  navigable  condition  within  its  own  territory. 

4.  Austria  recovered  nearly  nil  that  she  lost  in  1797  by  the  treaty  of 
Campo  Formio  or  afterward,  whether  in  or  out  of  Germany,  except  the 
Austrian  Netherlands,  and  acquired  that  part  of  the  Venetian  lands  in  the 
peninsula  which  Napoleon  appropriated,  and  all  other  territory  between 
the  Tessin,  the  Po,  and  the  Adriatic,  together  with  the  Valtelline,  Bormio, 
and  Chiavanna,  formerly  pertaining  to  the  Grisons,  as  well  as  the  former 
republic  of  Ragusa. 

5.  The  duchy  of  Wiirzburg,  as  the  peace  of  Presbnrg  made  it  in  1805, 
and  the  principality  of  Aschaffenburg,  which  formed  a  part  of  Napoleon's 
grand  duchy  of  Frankfort,  were  given  to  Bavaria. 

6.  The  city  of  Frankfort  was  restored  to  its  condition  in  1803. 

7.  In  lieu  of  the  duchy  of  Westphalia,  the  grand  duke  of  Hesse  acquired 
a  territory  on  the  left  bank  of  the  Rhine,  in  the  late  department  of  Mt.  Ton- 
nerre,  containing  140,000  inhabitants.     The  landgrave  of  Hesse-Homburg 
was  restored  to  his  estates,  from  which  he  had  been  ejected  in  consequence 
of  the  formation  of  the  confederation  of  the  Rhine.     Several  princes — the 
last  named,  the  dukes  of  Oldenburg,  Mecklenburg-Strelitz,  Saxe-Coburg— 


APPENDIX   II.  413 

received  grants  of  territory  on  the  Prussian  frontier  beyond  the  Rhine,  in 
the  late  French  department  of  the  Sarre,  which  was  to  be  placed  under 
Prussian  protection,  and  to  serve  as  small  change  in  future  adjustments. 
All  German  lands  not  before  disposed  of,  on  the  left  bank  of  the  Rhine, 
were  given  to  Austria. 

8.  The  Germanic  body,  including  the  king  of  Denmark  as  duke  of  Hoi- 
stein,  and  the  king  of  the  Netherlands  as  grand  duke  of  Luxemburg,  was 
constituted  into  a  confederation  of  equal  members,  thirty-eight  in  number, 
having  seventeen  votes  in  an  ordinary  assembly,  and  sixty-nine  votes  in  a 
general  assembly,  in  which  latter  organic  laws  and  other  affairs  of  great 
importance  were  to  be  brought  forward.     The  diet  was  to  be  permanent, 
under  the  presidency  of  Austria,  to  meet  at  Frankfort,  and  to  adjourn  for 
not  more  than  four  months.     In  a  general  assembly  a  vote  of  two  thirds 
was  required  for  the  passage  of  any  measure.    The  confederation  being  in 
tended  for  the  protection  of  all  Germany  and  of  each  member  against  for 
eign  powers,  no  member  was  allowed  to  negotiate  or  make  truce  or  peace 
with  any  state  with  which  the  confederation  should  be  at  war.   Differences 
between  the  confederates  were  to  be  pursued  without  force  of  arms,  and 
submitted  to  the  diet,  which  should  intervene  between  the  parties  in  the 
first  instance  .by  a  mediating  committee,  and,  if  a  judicial  sentence  should 
be  necessary,  by  an  "  Austriigalinstanz  "  or  court  of  high  arbitration.    In 
the  "  act  concerning  the  federative  constitution  of  Germany"  (Martens,  u.  s. 
353),  which  accompanies  the  final  act,  it  is  declared  that  in  the  states  of 
the  confederation  there   shall  be   assemblies  of  estates  or  of  deputies 
("  eine  landesstundliche  verfassung") ;  that  all  Christian  confessions  shall 
enjoy  equality  of  civil  and  political  rights ;  and  that  the  civil  disabilities  of 
the  Jews  ought  to  be  removed  as  far  as  practicable.    To  the  mediatized 
nobility,  who  had  before  1806  an  immediate  connection  with  the  empire, 
privileges  were  allowed  in  respect  to  rank,  taxation,  privileged  courts,  ex 
emption  from  military  duty,  the  exercise  of  civil  and  criminal  jurisdiction 
over  the  settlers  on  their  estates  in  the  first  instance,  and,  when  their  estates 
were  great  enough,  in  the  last  instance.     The  act  of  confederation  was 
amended  in  1820,  1832,  and  1834 ;  overthrown  in  1848-'49,  and  restored  in 
1851. 

9.  The  Dutch  United  Provinces,  with  the  larger  part  of  the  Austrian 
Netherlands,  were  constituted,  as  the  peace  of  Paris  had  determined,  Into  a 
kingdom  of  the  Netherlands,  under  the  prince  of  Orange-Nassau,  to  which 
territories  the  grand  duchy  of  Luxemburg,  including  a  part  of  the  duchy 
of  Bouillon  not  ceded  to  France,  was  added,  by  way  of  compensation  for 
German  possessions  parted  with  by  the  Orange  family.    Luxemburg  re 
mained  a  German  state  and  made  the  king  a  member  of  the  diet.    The 
town  of  Luxemburg  was  to  be  a  fortress  of  the  confederation. — In  a  con 
vention  signed  at  London,  Aug.  13,  1814  (Martens,  u.  s.  57),  England  en- 


4:14:  APPENDIX    II. 

gaged  to  restore  to  Holland  all  the  colonies,  factories,  and  establishments 
she  had  gained  by  conquest  since  1803,  except  the  Cape  of  Good  Hope, 
Demarara,  Essequibo,  and  Berbice. 

10.  The  relations  of  Switzerland  are  determined  by  a  declaration  of  the 
powers  forming  the  congress,  dated  March  20,  1815  (Martens,  u.  s.  157), 
by  the  act  of  accession  of  the  cantons  of  the  same  date  (ibid.  173),  and  by 
the  final  act.    Switzerland  is  to  take  the  relation  of  perpetual  neutrality 
(§  155),  and,  in  order  to  secure  this  end  the  better,  a  treaty  with  the  king 
of  Sardinia  of  May  26,  1815,  provides  that  the  provinces  of  Chablais  and 
Faucigny,  south  of  Lake  Leman,  and  all  of  Savoy  north  of  Ugine  shall 
assume  the  same  neutral  attitude.     To  the  old  nineteen  cantons,  Geneva, 
Valais,  and  Neufchatel  are  added — the  latter  under  Prussian  sovereignty, 
•which  continued  from  the  peace  of  Utrecht  until  1848.     The  territory  of 
Geneva  is  enlarged  by  a  cession  of  a  small  district  in  Savoy.    The  routes 
from  Geneva  along  the  lake  in  both  directions — by  Yersoix  in  France 
toward  the  canton  of  Vaud,  and  by  the  route  of  the  Simplon  through 
Savoy  toward  Yalais — are  to  be  exempt  from  transit  dues  and  examination 
of  merchandise.     The  former  bishopric  of  Basel  and  most  of  the  territory 
of  Bienne  are  united  to  the  canton  of  Berne. 

11.  Sardinia  gained  the  tracts  called  the  imperial  fiefs,  which  had  been 
attached  to  the  Ligurian  republic  of  Napoleon,  and  the  territory  of  the 
former  republic  of  Genoa,  including  the  island  of  Capraja.     The  limits  of 
this  kingdom  are  nearly  the  same  as  in  1792,  but  the  boundary  of  France, 
as  determined  by  the  first  treaty  of  Paris,  is  made  to  take  in  a  portion  of 
Savoy  then  contained  in  the  French  department  of  Mont  Blanc,  viz.,  most 
of  the  sub-prefectures  of  Chambery  and  Annecy. 

12.  The  Archduke  Francis  of  Este,  his  heirs  and  successors,  were  to 
hold  the  duchies  of  Modena,  Reggio,  and  Mirandola,  according  to  the  limits 
which  they  had  by  the  treaty  of  Campo  Formio.     The  Archduchess  Maria- 
Beatrix  of  Este,  her  heirs  and  successors,  were  to  hold  the  principalities  of 
Massa  and  Carrara,  with  the  imperial  fiefs  in  Lunigiana,  which  last  might 
be  exchanged  for  other  properties  between  Modena  and  Tuscany  at  the  will 
of  the  parties. — Tuscany,  as  it  was  before  the  treaty  of  Luneville,  was  re 
stored  to  the  duke  of  the  Austrian  line,  Ferdinand,  his  heirs  and  succes 
sors,  and  to  this  territory  were  added  the  part  of  Elba  formerly  under  the 
suzerainty  of  the  king  of  the  Two  Sicilies,  Piombino,   certain  imperial 
fiefs  formerly  enclosed  in  Tuscany  and  "  I'&tat  des  Presides." — The  duchies 
of  Parma,  Piacenza.  and  Guastalla  were  granted,  as  was  provided  by  the 
treaty  of  abdication  of  Napoleon  (see  p.  410),  to  the  Empress  Maria  Louisa, 
and  the  reversibility  of  these  territories — saving  the  old  rights  of  reversion 
of  Austria  and  Sardinia — was  to  be  determined  by  common  agreement 
between  the  five  leading  powers  and  Spain.    Such  an  agreement  was  made 
at  Paris,  June  10,  1817.    (Martens,  n.  r.  IV.  416  onw.)      It  related  espe- 


APPENDIX    II.  415 

cially  to  the  Spanish  ducal  house  of  Lucca. — The  Congress  of  Vienna  estab 
lished  the  Infanta  Maria  Louisa  and  her  male  heirs  in  Lucca  as  a  duchy ; 
added  to  the  revenues  of  the  duchy  a  rent  of  150,000  francs,  to  be  paid  by 
Austria  and  Tuscany  ;  and  gave  the  reversion,  in  case  of  failure  of  the  line 
or  their  removal  to  another  establishment,  to  Tuscany.  -  The  duke  of  Tuscany 
engaged  to  cede  certain  districts  to  the  duke  of  Modena,  whenever  the  re 
version  of  Lucca  should  fall  to  him,  viz. :  Fivizzano,  Pietra  Santa,  Barga, 
and  others.  By  the  treaty  above  mentioned,  of  June  10, 1817,  it  was  agreed 
that,  after  the  decease  of  the  Empress  Maria  Louisa,  her  duchies  of  Parma, 
Piacenza,  and  Guastalla — with  the  exception  of  certain  districts  on  the  left 
bank  of  the  Po,  enclosed  in  the  dominions  of  Austria,  which  should  belong 
to  that  power — should  go  to  the  Lucchese  house.  The  reversion  of  these 
duchies,  in  case  of  the  extinction  of  the  branch  of  the  Infant  Don  Charles 
Louis,  was  to  follow  the  provisions  of  the  treaty  of  Aix-la-Chapelle  (1748), 
and  of  a  separate  article  of  the  treaty  of  1815  between  Austria  and  Sardi 
nia.  (See  Martens,  n.  r.  II.  298,  and  for  that  article  Murhard,  XV.  41.) 
This  separate  article  confirms  the  rights  of  reversion  of  Sardinia  to  the 
duchy  of  Piacenza,  but  adds  that  the  city  of  Piacenza  with  a  radius  of  2,000 
toises  from  the  crest  of  the  glacis  shall  appertain,  in  case  of  such  rever 
sion,  to  Austria,  for  which  she  shall  give  to  Sardinia  contiguous  territory 
equivalent  in  population  and  revenue. — The  Holy  See  was  restored  to  the 
possession  of  its  former  territory,  viz. :  the  Marches  with  Camerino  and 
their  dependencies,  Ponte-Corvo,  the  legations  of  Bologna,  Ravenna,  and 
Ferrara,  except  that  part  of  the  latter  situated  on  the  left  bank  of  the  Po. 
Austria  was  to  have  the  right  of  garrison  in  Ferrara  and  Comacchio. — The 
king  of  Naples,  Ferdinand  IV.,  was  reestablished  on  the  throne  of  the  Two 
Sicilies. 

13.  The  allies  engage  to  use  their  best  endeavors  to  induce  Spain  to 
yield  up  Olivenza  and  other  places  gained  by  the  treaty  of  Badajos  in  1801 
to  Portugal.    The  restitution  of  French  Guiana  to  Portugal  has  been 
already  mentioned. 

14.  For  the  arrangements  of  the  congress  in  regard  to  river  navigation, 
comp.  §  58,  and  Martens,  u.  s.  434.     For  its  rule  touching  the  rank  of  am 
bassadors,  comp.  §  94,  and  Martens,  u.  s.  449.    For  the  declaration  concern 
ing  the  slave  trade,  see  Martens,  u.  s.  432. 

1814,  Dec.  24.     Treaty  of  peace  made  at  Ghent,  between  Great  Britain 
and  the  United  States.     (Martens,  u.  s.  II.  76,  in  a  French  translation.)    Its 
leading  features  are  general  restitution,  provision  for  the  arrangement  of 
boundaries,  silence  on  the  subject  of  maritime  rights  and  the  impressment 
of  seamen,  and  an  engagement  of  the  parties  to  endeavor  to  put  an  end  to 
the  slave  trade.     (Comp.  §  55,  198.) 

1815,  Nov.  20.     Second  treaty  of  Paris,  after  Napoleon's  final  downfall, 
consisting  of  four  separate  instruments,  of  the  same  tenor,  between  France 


416  APPENDIX  n. 

and  each  of  the  four  great  powers.  By  this  treaty,  (1.)  the  limits  of  France 
toward  Belgium,  Germany,  and  Savoy,  were  somewhat  narrower  than  the 
peace  of  1814  had  made  them,  being  brought  back  nearly  to  the  line  of 
1790.  In  this  way  the  fortresses  of  Philippeville  and  Marienburg,  with  the 
whole  of  the  duchy  of  Bouillon,  instead  of  a  part  of  it,  were  transferred  to 
the  kingdom  of  the  Netherlands ;  Saarlouis,  Saarbriick,  and  the  course  of 
the  Saar  Became  Prussian  ;  the  fort  of  Landau,  and  a  French  tract  on  the 
right  of  the  Lauter  went  ultimately  to  Bavaria ;  half  the  bridge  between 
Strasburg  and  Kehl  pertained  to  Baden ;  a  portion  of  the  district  of  Gex 
on  Lake  Leman,  between  the  cantons  of  Vaud  and  Geneva,  was  added  to 
the  latter ;  and  the  districts  of  Chambery  and  Annecy  were  restored  to 
Sardinia.  The  neutrality  of  Switzerland  and  of  a  part  of  Savoy  was  ex 
tended  to  a  district  defined  by  a  line  drawn  from  Ugine  (see  act  of  the 
Congress  of  Vienna)  through  the  lakes  of  Annecy  and  Bourget  to  the 
Ehone.  The  French  fortress  of  Huningue  (Hunningen).  near  Basel,  was  to 
be  demolished.  (2.)  An  indemnity  of  seven  hundred  million  francs  was  to 
be  paid  to  the  allies.  Their  troops,  not  exceeding  150,000  in  number,  were 
to  have  military  occupation  of  France,  at  the  expense  of  the  country,  in 
certain  specified  places,  for  not  more  than  five  years,  but  might  be  with 
drawn  at  the  end  of  three  years,  if  the  security  of  Europe  should  permit. 
(Martens,  u.  s.  II.  682.) — By  a  convention  b.etween  the  four  allied  powers, 
made  at  Paris,  Nov.  5,  1815,  the  seven  Ionian  islands  were  to  constitute  a 
free  state  under  the  protectorate  of  Great  Britain,  with  a  resident  lord 
high  commissioner  appointed  by  that  power,  a  legislative  assembly,  etc. ; 
tbe  military  force  of  the  islands  to  be  commanded  and  their  forts  to  be 
garrisoned  by  Great  Britain — the  British  garrisons  being  paid  by  the  re 
public.  [These  islands,  long  Venetian,  then  the  prey  of  France  (treaty  of 
Campo  Formio,  1797),  then,  after  being  for  a  short  time  left  to  themselves, 
first  under  Turkish  and  afterward  under  Eussian  protection,  then  re 
stored  to  France  (peace  of  Tilsit,  1807),  &nd  conquered  by  England,  have 
recently  passed  from  under  the  protectorate  of  England  into  union  with  the 
kingdom  of  Greece,  1863.]  (Martens,  u.  s.  663.) — The  works  of  art  which 
Napoleon  had  gathered  from  various  countries  of  Europe  were  restored  by 
another  special  instrument  to  their  former  owners.  (Martens,  u.  s.  632  onw.) 


TEEATIES   OF   THE    AGE    OF   REACTION    AND    INTERVENTION.      PROMINENCE    OP 
QUESTIONS   RELATING   TO   TURKEY   AND   TO   ITALY. 

1815,  Sept.  26.    The  Holy  Alliance.     Comp.  §  46. 

1818,  Autumn.  Congress  at  Aix-la-Chapelle,  of  the  four  allies  and 
France.  Comp.  §46.  (Martens,  nouv.  rec.  IV.  549-566.)  By  an  agree 
ment  dated  Oct.  9,  the  troops  of  the  allies  are  to  evacuate  France  on  or 


APPENDIX    H.  417 

before  the  last  day  of  November,  and  to  give  up  the  forts,  as  they  were 
when  the  occupation  began.  Some  of  the  indemnity,  agreed  to  in  1815 
and  still  due,  is  remitted.  France  joins  the  holy  alliance.  For  the  proto 
col  of  Nov.  21,  comp.  §  94. 

1820,  Oct.  28  and  onward.  Congress  of  Troppau,  afterward  removed 
to  Laybach,  §  46. 

1822,  October.     Congress  of  Verona,  §  46. 

1826,  Oct.  7.     Convention  of  Ackerman,  between  Kussia  and  Turkey. 
In  general  a  restatement  of  the  peace  of  Bucharest  (1812),  confirming  the 
privileges  of  Servia,  and  restoring  the  mode  of  electing  the  hospodars  of 
Moldavia  and  Wallachia.    A  certain  control  over  the  power  of  the  sultan 
to  dismiss  them  from  office  is  acquired  by  Russia.    (Martens,  n.r.  VI.  1053 
onw.,  esp.  the  separate  acts.) 

1827,  July  6.     Treaty  of  London  between  Great  Britain  and  Russia,  to 
which  France  afterward  acceded.     (Martens,  u.  s.  VII.  282  and  463.) 
These  powers  offer  their  mediation  to  Turkey  on  behalf  of  Greece,  which 
shall  be,  they  propose,  a  vassal  state  under  the  sultan,  like  the  Danubian 
principalities.     On  the  20th  of  October  the  Turkish  fleet  was  annihilated 
atNavarino,  and  in  1828  the  Morea  was  cleared  of  the  troops  of  Ibraham 
Pacha.     The  boundaries  of  liberated  Greece  were  thus  enlarged. 

1828,  Feb.  22.     Treaty  between  Russia  and  Persia  signed  at  Tourk- 
mantchai,  by  which  Persia  ceded  the  khanats  of  Erivan  and  Nakhitshevan, 
promised  an  indemnity  of  twenty  millions  silver  roubles,  and  agreed,  as  in 
the  treaty  ratified  at  Tifiis,  Sept.  15,  1814,  that  no  ships  of  war,  except 
Russian,  should  navigate  the  Caspian.      (Martens,  u.  s.  VII.  504.)     By  this 
treaty  of  Tiflis,  Persia  gave  up  to  Russia  seven  khanats  south  of  the  Cau 
casus,  of  which  the  Russians  were  actual  masters,  and  renounced  all  claim 
to  Daghestan,  Georgia,  Imeritia,  Mingrelia,  Abchasia,  etc.     (Martens,  u.  s. 
IV.  89.) 

1829,  Sept.  14.     Treaty  of  Adrianople  between  Russia  and  Turkey. 
(Martens,  u.  s.  VIII.  143.)    Russia  restores  her  conquests.     The  Pruth  to 
bound  the  two  countries  as  heretofore  to  the  Danube,  and  the  Danube  to 
the  Black  Sea,  but  in  such  sort  that  the  islands  in  the  river  shall  be  Rus 
sian  territory.     The  boundaries  in  the  east  are  so  drawn  that  a  part  of 
Turkish  Armenia,  with  the  city  of  Akhalzik  and  the  fortress  of  Akhalka- 
laki,  passes  under  Russian  sovereignty.     Turkey  also  concedes  that  the 
sovereignty  of  Russia  extends  over  Georgia,  Imeritia,  Mingrelia,  Gouriel, 
and  other  Caucasian  countries.   Passage  is  allowed  through  the  Dardanelles 
and  Bosporus,  or,  in  other  words,  the  Black  Sea  is  opened  to  vessels  of 
nations  at  peace  with  Turkey,  and  Russia  has  the  right  of  navigating  the 
Danube.     The  prior  agreements  with  regard  to  the  Danubian  principalities 
are  confirmed,  and  the  hospodars  are  to  be  appointed  for  life,  being  re 
movable  for  crime  only. 

27 


418  APPENDIX  n. 

1831,  Nov.  15.     Treaty  for  the  definitive  separation  of  Belgium  from 
Holland,  signed  at  London  between  the  five  powers  on  the  one  part  and 
Belgium  on  the  other.     Comp.  §  49,  §  155.     (Martens,  u.  s.  XI.  390.) 

1832,  May  7.     Convention  of  London  between  France,  England,  and 
Russia  on  the  one  part,  and  Bavaria  on  the  other.    (Martens,  u.  s.  X.  550.) 
The  crown  of  Greece,  now  made  a  kingdom,  is  offered,  with  the  authoriza 
tion  of  the  Greek  nation,  to  the  king  of  Bavaria,  to  be  worn  by  his  second 
son,  Frederic  Otho,  and  accepted.     The  limits  of  the  kingdom  are  to  be 
fixed  by  treaty  with  Turkey,  according  to  a  protocol  of  Sept.  26,  1831.    A 
loan  to  the  king  of  Greece  is  guaranteed  by  Russia,  and,  if  the  consent  of 
the  chambers  and  the  parliament  can  be  obtained,  by  France  and  England. 

1833,  July  8.     Convention  of  Unkiar-Skelessi,  between  Russia  and  Tur 
key,  after  the  victories  of  Ibrahim  Pacha  in  Syria  and  Asia  Minor,  and  the 
peace  of  Kutaiah  between  him  and  Turkey,  May  6,  1832.     The  two  parties 
form  an  alliance,  agreeing  to  aid  one  another  in  case  of  attack,  when  such 
aid  is  invoked.     In  a  secret  article  it  is  added  that  Russia  exempts  Turkey 
from  rendering  such  aid  on  condition  that  she  closes  the  Dardanelles  against 
foreign  vessels  of  war.     (Martens,  u.  s.  XI.  655.)     In  a  protest  of  France 
against  this  treaty,  as  likely  to  give  rise  to  an  armed  intervention  of  Rus 
sia  in  the  internal  affairs  of  Turkey,  it  is  said  that,  if  circumstances  demand, 
France  shall  act  as  if  no  such  treaty  existed.   (Martens,  u.  s.  659.)     Comp. 
what  Dr.  Wheaton  says  in  his  history,  part  4,  §§29,  30,  of  this  treaty  and 
those  of  Ackerman  and  Adrianople. 

1842,  Aug.  9.  Treaty  of  Washington,  for  adjustment  of  the  boundary 
between  the  United  States  and  the  British  possessions  on  the  northeast. 
For  the  rules  of  extradition  then  made,  comp.  §  79.  For  the  discussions 
on  the  right  of  search,  comp.  §  202.  For  the  arrangements  to  suppress  the 
slave  trade,  comp.  §§  199,  200.  (Murhard,  nouv.  rec.,  gen.,  continuing  Mar 
tens,  III.  456.) 

1844,  Nov.  28.  Treaty  between  the  dukes  of  Tuscany,  Lucca,  and  Mo- 
dena,  in  view  of  the  death  of  the  Empress  Maria  Louisa,  duchess  of  Parma. 
This  event  took  place  Dec.  18, 1847,  when  the  duke  of  Lucca  would  become 
duke  of  Parma,  Piacenza,  and  Guastalla,  and  Lucca  would  become  Tuscan. 
(See  Congress  of  Vienna,  N"o.  12.)  The  duke  of  Lucca  (future  duke  of 
Parma)  agreed  to  cede  to  Modena,  Guastalla,  and  the  Parmesan  territory 
on  the  right  bank  of  the  Enza.  Modena  renounces  to  Tuscany  the  vicariats 
of  Barga  and  Pietra  Santa  (Act  of  Cong,  of  Vienna,  art.  GIL) — which  were 
to  become  Modenese  when  Lucca  should  become  Tuscan — and  to  Parma 
the  districts  of  Bazzano  and  Scurano  on  the  left  bank  of  the  Enza.  Tuscany 
cedes  to  Parma  its  possessions  in  the  Lunigiana,  Pontremole,  Bagnone,  and 
their  dependencies.  These  arrangements  rounded  off  the  duohies,  and  did 
away  with  enclaves.  Austria  and  Sardinia — whose  rights  of  reversion 
were  affected,  that  of  Austria  to  Parma  and  Guastalla,  that  of  Sardinia  to 


APPENDIX  n.  419 

Piacenza,  both  derived  from  the  treaty  of  Aix-la-Ohapelle — concurred,  and 
modified  their  rights  in  such  sort  that  the  reversion  of  Austria  was  made 
to  apply  to  the  new  Parmesan  territory  in  the  Lunigiana,  and  was  passed 
over  to  Sardinia  by  way  of  indemnity  for  the  loss  of  the  town  of  Piacenza, 
which,  by  a  special  article  of  May  20,  1815,  concluded  at  Vienna,  was  to 
become  Austrian  whenever  the  duchy  of  the  same  name  should  revert  to 
Sardinia.  (Murhard,  XV.  1-42.) — In  the  spring  of  1861  these  duchies, 
with  Romagna,  by  a  revolutionary  action  and  the  consent  of  the  people, 
were  annexed  to  the  kingdom  of  Sardinia. 

1848,  Feb.  2.  Treaty  of  Guadalupe-Hidalgo,  by  which  Texas,  New 
Mexico,  and  Upper  California  were  ceded  to  the  United  States,  which 
agreed  to  surrender  all  other  conquests,  to  pay  Mexico  fifteen  millions  of 
dollars,  and  to  assume  all  claims  of  its  citizens  against  Mexico,  decided  or 
undecided,  arising  before  the  signature  of  the  treaty.  (Murhard,  XIV.  7.) 
For  article  XXII.  of  this  treaty,  comp.  §  152. 

1852.  Arrangements  between  Denmark  and  the  German  confedera 
tion,  in  settlement  of  the  difficulties  relative  to  Holstein  and  Schleswig 
(Murhard,  XV.  319-414),  after  the  armistice  of  Berlin,  July  10,  1849  (Mur 
hard,  XIV.  544,  699),  and  when  the  two  great  German  powers,  early  in 
1851,  had  required  the  revolutionary  authorities  in  those  duchies  to  lay 
down  their  arms,  promising  to  maintain  the  rights  of  Holstein  and  its  old 
relations  to  Schleswig  on  the  basis  of  the  status  quo  ante  helium.  The 
principal  documents  are  a  despatch  of  the  Danish  minister  of  foreign  affairs 
to  the  Danish  legations  at  Vienna  and  Berlin,  with  an  annexed  project, 
dated  Dec.  6, 1851 ;  a  despatch  of  the  president  minister  of  Austria  in  reply, 
addressed  to  the  Austrian  legation  in  Denmark,  dated  Dec.  26,  1851 ;  a 
proclamation  of  the  king  of  Denmark,  announcing  to  his  subjects  what  had 
been  done  (Jan.  28,  1852) ;  and  the  confirmation  by  the  German  diet  of  the 
arrangements  between  Austria  and  Prussia,  acting  on  their  behalf,  and  Den 
mark  (July  27, 1852).  The  arrangements,  not  being  in  the  usual  diplomatic 
form,  fail  in  precision.  The  leading  engagements  on  Denmark's  part  are : 
(1.)  not  to  incorporate  Schleswig  into  the  kingdom  of  Denmark;  (2.)  to 
preserve  the  relations  other  than  political  between  the  Danish  duchy  and 
the  German  duchy  of  Holstein  ;  (3.)  so  to  organize  the  Danish  monarchy 
that  no  one  of  the  separate  parts  shall  be  subordinate  to  the  rest ;  (4.)  to 
make  such  organization  or  new  constitution  in  concurrence  with  the  estates 
of  Schleswig,  of  Holstein,  and  of  Lauenburg ;  (5.)  to  let  the  estates  of 
Schleswig  and  Holstein  have  a  decisive  voice  in  laws  touching  the  imposts, 
and  rights  of  person  and  property ;  (6.)  to  grant  these  duchies  separate 
ministries  of  justice,  worship,  public -instruction,  internal  administration, 
commerce,  and  industry ;  while  foreign  affairs,  the  forces,  the  finances,  and 
council  of  state  shall  be  common  to  Denmark  and  the  duchies. 

Not  long  after  this,  the  five  principal  powers  of  Europe  with  Sweden,  in 


420  APPENDIX  n. 

a  convention  at  London,  engaged  to  acknowledge  the  right  of  the  prince 
of  Holstein-Sonderburg-Glucksburg  to  succeed  to  the  Danish  crown,  in  the 
event  of  the  extinction  of  the  reigning  house — which  event  has  recently 
happened.  This  prince  was  a  near  agnate,  and  was  married  to  one  of  the 
nearest  cognates,  and  the  law  authorized  the  succession  of  females;  but  the 
family  of  dukes  of  Holstein-Sonderburg-Augustenburg  were  nearer  ag 
nates,"  and  as  such,  had  some  claim  to  succeed  in  Schleswig  and  Holstein, 
where  the  law  of  succession  is  said  to  be  different.  This,  with  other  irri 
tations,  is,  while  we  write,  again  involving  Denmark  in  a  new  war  with 
the  German  confederation.  Comp.  an  article  in  the  London  Quarterly  for 
Jan.  1864,  written  by  a  partisan  of  Denmark. 

1856,  March  30.  Treaty  of  Paris  after  the  Crimean  war,  between 
France,  Austria,  Great  Britain,  Sardinia,  and  the  Ottoman  Porte  on  the 
one  part,  and  Russia  on  the  other.  (Murhard-Samwer,  XY.  770.)  By  this 
treaty  (1.)  the  Black  Sea  is  neutralized  and  opened  to  the  commerce  of  all 
nations,  but  interdicted  to  flags  of  war,  excepting  that  a  certain  force  can 
be  kept  on  foot  for  revenue  purposes  by  Turkey  and  Eussia,  who  pledge 
themselves  to  maintain  no  naval  arsenals  on  its  coasts,  §  57.  In  accordance 
with  this,  the  old  Turkish  principle  is  to  be  maintained,  of  admitting  no 
vessels  of  war  into  the  Dardanelles  and  the  Bosporus,  the  only  exceptions 
being  those  of  light  vessels  in  the  service  of  the  legations  of  friendly  pow 
ers,  and  of  the  powers  who  have  a  right  under  the  treaty  to  station  certain 
vessels  at  the  mouths  of  the  Danube.  (Articles  XI-XIV.)  (2.)  The  Danube 
is  thrown  open  to  commerce,  §58.  (Art.  XV-XIX.)  (3.)  The  limits  of 
Bessarabia  are  somewhat  altered,  with  the  intention  of  taking  away  from 
Russia  the  command  of  the  mouths  of  the  Danube,  and  the  tract  thus  ceded 
by  Russia  is  added  to  Moldavia.  (Art.  XX-XXVI.)  The  places  taken  in 
the  war  from  Russia  are  restored.  (Art.  IV.)  (4.)  Moldavia  and  Wallachia, 
as  states  under  the  suzerainty  of  Turkey,  are  confirmed  in  their  privileges 
by  the  Sublime  Porte,  and  guaranteed  in  them  by  the  contracting  powers ; 
but  no  exclusive  protection  over  them  can  be  exercised  by  any  of  the 
guaranteeing  states,  nor  any  separate  right  admitted  of  interfering  in  their 
internal  affairs.  They  are  to  have  an  independent  national  administration, 
liberty  of  worship,  legislation,  and  commerce,  an  armed  national  force,  and 
a  revision  of  their  laws,  made  under  a  joint  commission  of  all  the  contract 
ing  parties.  A  new  organization  of  these  principalities  shall  be  arranged 
by  a  convention  at  Paris  of  tho  treaty-making  powers,  and  a  hatti  scheriff, 
conformed  to  the  decisions  of  that  convention,  shall  be  the  instrument 
under  which  their  organization  is  to  proceed.  They  are  allowed,  in  con 
cert  with  the  Porte,  to  adopt  measures  against  foreign  aggression.  If 
internal  disorders  should  break  out  in  them,  the  Porte  shall  have  an  under 
standing,  with  the  other  parties  to  the  treaty,  concerning  measures  to  be 
taken  for  the  purpose  of  maintaining  or  establishing  legal  order,  but  no 


APPENDIX   H.  421 

armed  intervention  can  take  place  without  the  previous  accord  of  the  afore 
said  powers.  (Art.  XXI-XXVII.)  For  the  convention,  organizing  the 
principalities,  which  was  signed  at  Paris,  Aug.  19,  1858,  see  Murhard- 
Samwer  XVI.  2.  50.  (5.)  Servia,  with  its  privileges,  is  placed  under  the 
same  guaranty.  The  Sultan's  right  of  having  garrisons  there  is  to  remain 
as  it  had  been.  (6.)  The  Sultan  is  invited  to  participate  in  the  European 
advantages  of  public  law  and  concerted  action,  and  is  secured  in  the  inde 
pendence  and  integrity  of  his  empire.  The  firman  of  Feb.  18, 1856,  placing 
all  Christian  sects  in  Turkey  on  a  level  with  Mohammedans,  in  respect  to 
life,  property,  religion,  etc.,  is  acknowledged  by  the  other  powers,  who, 
however,  disclaim  all  right  to  interfere  between  the  Sultan  and  his  subjects, 
or  in  the  internal  administration  of  his  kingdom.  (Art.  VII-IX.) 

By  a  declaration  of  April  16  certain  important  rules  of  maritime  law 
are  adopted  by  the  parties  to  this  peace.  See  §§  175,  122.  (Murhard-Sam- 
wer  XV.  791.) — Three  powers,  Austria,  France  and  Great  Britain,  unite  in 
a  special  guaranty  of  the  independence  and  integrity  of  the  Ottoman  em 
pire.  All  infractions  of  the  treaty  in  that  direction  will  be  considered  as 
casus  lelli.  (Ibid.  790.) 

1858.  The  treaties  of  this  year,  opening  China  to  several  of  the  Chris 
tian  powers,  are  remarkable,  as  bringing  that  country  in  a  degree  within  the 
sphere  of  the  law  of  nations.     In  the  French  treaty  of  June  27,  it  is  said 
that  the  diplomatic  agents  shall  enjoy,  where  they  reside,  the  privileges 
and  immunities  granted  to  them  by  the  law  of  nations,  that  is  to  say,  their 
persons,  family,  house,  and  correspondence  shall  be  inviolable,  etc.    Consuls 
or  consular  agents  may  be  appointed  for  certain  sea  and  river  ports.     The 
right  of  building  houses,  churches,  schools,  etc.  in  the  open  ports  is  admit 
ted.    Frenchmen  may  resort  to  places  in  the  interior  and  ports  not  open 
to  foreign  commerce,   when  armed  with  passports    given    by    French 
diplomatic  agents  and  consuls.     Members  of  all  Christian  communions 
shall  have  freedom  of  person  and  worship,  and  missionaries  passing  into 
the  interior,  provided  with  passports  as  above,  shall  be  protected.     No 
obstacle  shall  be  put  in  the  way  of  any  Chinese  embracing  Christianity. 
(Ibid.  XVII.  I.  1.)* 

1859,  July  11.     Preliminaries  of  peace  concluded  at  Villafranca  be 
tween  Austria,  France  and  Sardinia,  followed  by  a  definitive  peace  signed 
at  Zurich  Nov.  10,  of  the  same  year.  (Ibid.  XVI.  2, 516.)    The  treaties  are 
three  in  number,  two  between  Austria  and  each  of  the  other  parties,  and 
one  in  which  all  three  are  concerned.     Austria  cedes  to  France,  and  France 
transfers  to  Sardinia  nearly  all  of  Lombardy.     The  boundary  line  of  the 
ceded  territory  runs  from  the  southern  linlit  of  Tyrol  on  the  Lago  di  Garda, 
through  the  middle  of  that  lake,  to  the  vicinity  of  the  fortress  of  Peschiera, 

*  Quite  recently  we  learn  that  a  Chinese  translation  of  Dr.  Wheaton's  Elements  ia  in  prepara 
tion.  (1864.) 


422  APPENDIX  n. 

until  it  strikes  the  circumference  of  a  zone  made  by  a  radius  of  3,500  metres 
plus  the  distance  from  the  centre  of  the  fort  to  the  outermost  part  of  the 
glacis ;  thence  along  that  circumference  to  where  it  strikes  the  Mincio ; 
thence  along  the  main  channel  of  the  Mincio  to  Le  Grazie,  and  thence  in  a 
direct  line  to  the  Po ;  thence  along  the  main  channel  of  the  Po  to  Luzzara, 
where  the  former  boundary  line  of  Austrian  and  Sardinian  territory  comes 
to  the  river.  It  is  also  agreed  that  Austria  shall  receive  from  France  a 
payment  of  40  millions  of  florins,  being  a  portion  of  the  national  loan  of 
1854,  in  return  for  which  Sardinia  shall  pay  France  100  million  francs,  in 
five  per  cent,  stock,  besides  60  millions  toward  the  cost  of  the  war.  The 
new  government  shall  assume  three  fifths  of  the  debt  of  the  Lombardo- 
Yenetian  Monte,  or  bank  for  loans.  In  the  treaty  between  France  and 
Austria  the  two  parties  promise  to  favor  an  Italian  confederation  under  the 
Pope,  of  which,  when  established,  the  Venetian  part  of  the  Austrian 
dominions  in  Italy  shall  be  a  member,  although  still  remaining  subject  to 
the  Austrian  crown.  In  the  same  treaty  it  is  said  that  the  rights  of  the 
dukes  of  Tuscany,  Modena  and  Parma,  to  their  dominions,  are  reserved 
as  being  outside  of  the  authority  of  the  contracting  parties,  and  not  capable 
of  being  changed  except  with  the  concurrence  of  the  powers  which  made 
the  treaty  of  Vienna  of  1815. 

As  a  sequel  to  this  cession  of  Lombardy,  by  a  treaty  signed  at  Turin, 
March  24,  1860,  Sardinia  cedes  Savoy  and  the  arrondissement  of  Nice  to 
France,  the  parts  of  Savoy  near  Switzerland  being  transferred  subject  to 
the  condition  of  neutrality  imposed  on  them  in  1815.  §  155.  (Murhard- 
Samwer  XVI.  2,  539.) — By  these  two  last  treaties  and  the  subsequent 
events  in  Italy  the  arrangements  of  the  Congress  of  Vienna  are  effectually 
set  aside,  as  it  regards  one  important  part  of  Europe,  and  the  control  then 
given  to  Austria  over  Italian  affairs  is  lost. 


INDEX. 


ABERDEEN,  Earl  of,  on  the  right  of  search,  §  200. 

Adains,  J.  Q.,  on  the  Monroe  doctrine,  §  47  ;  negotiations  on  suppressing  the  slave- 
trade,  §  198. 

Admiralty,  English,  its  doctrine  on  notice  of  blockade,  §  187. 

Agents  of  intercourse,  §  87,  et  seq.     See  Ambassadors,  Consuls. 

Aix-la-Chapelle.     See  Congress. 

Albericus  Gentilis,  app.  i.  §  92  e. 

Alexander  VI.,  Pope,  his  grant  to  Spain,  §  53. 

Aliens  to  be  protected,  §  61 ;  their  right  of  asylum,  ibid. ;  of  innocent  passage,  ibid. ; 
their  relation  to  the  laws,  §  62  ;  increase  of  humane  feeling  toward  them  illus 
trated,  §  63  ;  may  lose  the  character  of  aliens,  §  66.  (See  Naturalization.)  Suits 
against,  in  foreign  courts,  §  76  ;  how  far  they  may  sue  in  foreign  courts,  ibid. ; 
in  a  country  at  war  with  their  own,  §  118  ;  their  property  there,  ibid. 

Alliance,  triple,  app.  ii.,  1668;  grand,  ibid.,  1701.  See  Peace  of  Utrecht,  triple, 
ibid.,  1717 ;  quadruple,  ibid.,  1718  ;  holy,  ibid.,  1815,  §  46.  See  also  Treaty. 

Alternat,  §  94. 

Amalfi,  sea  laws  of,  p.  37. 

Ambassador,  general  term,  §  87  ;  also  indicates  one  kind  of  agent,  ibid.,  and  §  94  ; 
kinds  of,  §  87  ;  derivation  of  the  term,  ibid. ;  origin  of  the  privileges  of,  §  88  ;  tem 
porary  and  resident,  §  89  ;  importance  of  the  latter,  ibid. ;  obligation  to  receive, 
considered,  §  90  ;  what  ambassadors  may  a  nation  refuse  to  receive,  ibid. ;  who 
has  the  right  of  sending,  §  91 ;  deputies  from  protected  states  and  towns,  not  a, 
ibid. ;  a  subject  representing  a  foreign  state  as  a,  ibid. ;  female  a,  ibid. ;  note. 
Pope's  nuncios  nominated  in  some  Catholic  states,  ibid. ;  may  represent  several 
courts,  or  one  court  in  several  states,  ibid.,  end ;  credentials  of,  §  91 ;  and  privileges 
of,  §  92  a,  et  seq. ;  inviolability  and  exterritoriality  of,  ibid,  (see  those  words  for 
his  special  powers) ;  houses  provided  for,  §  92  6,  note  ;  limits  of  privileges  of, 
§  92  e  ;  history  of  treatment  of,  esp.  in  England  before  Queen  Anne's  reign,  ibid. ; 
relations  to  third  powers,  §  93  ;  rank  of,  §  94  ;  recall  of,  ibid. ;  formalities  and 
occasions  of  recall,  ibid. ;  full  power  of  ambassadors,  its  import,  §  107  ;  ambassa 
dors  cannot  sit  as  judge  of  captures,  §  141 ;  case  of  the  British  ambassador  in  the 
United  States  in  1856,  §  166. 
Amistad,  case  of  the,  §  138. 
Amnesty  implied  in  peace,  §  153. 


INDEX. 

Armed  neutrality,  §  155  ;  first  in  1780,  app.  ii.,  §  174 ;  second  in  1800,  app.  iL, 
§191. 

Armistice.    See  Truce. 

Athens.    See  Greece. 

Aubaine,  droit  de,  §  63. 

Austria  acquires  the  Spanish  Netherlands  by  treaty  of  Rastadt,  app.  ii.,  1714  ;  also, 
Naples,  Milan,  Sardinia,  ibid. ;  exchanges  Sardinia  for  Sicily  with  Savoy,  ibid., 
1718  ;  pragmatic  sanction,  ibid.,  1735 ;  acquisitions  by  peace  of  Passarowitz, 
ibid.,  1721 ;  acquisitions  in  Poland,  ibid.,  1772, 1773 ;  cedes  Netherlands  to  France, 
ibid.,  1797 ;  humiliation  in  1805,  1809,  ibid. ;  naturalization  La,  §  66 ;  proceed 
ings  in  Koszta's  case,  §  81 ;  in  Mr.  Hiilsemann's  case,  §  83. 

Ayala  Balthazar,  app.  i. 

Azuni,  D.  A.,  app.  i. 

BALANCE  of  power  ;  meaning  of  the  phrase,  §  43  ;  Europe  a  loose  confederation, 
ibid. ;  interference  for  the  balance  of  power  known  to  the  Greeks,  §  44  ;  to  me 
diaeval  Europe,  ibid. ;  applied  against  the  house  of  Hapsburg,  ibid. ;  against 
Louis  XIV.,  ibid. ;  since,  ibid. 

Bannus,  bannum,  §  178. 

Barbary  powers  form  states,  §  36  ;  and  are  not  pirates,  §  137. 

Belgium,  its  union  with  Holland,  app.  ii.,  1814 ;  disruption,  §  49  ;  interference  of 
great  powers  in  the  dispute,  ibid. ;  is  made  neutral  territory,  ibid.,  and  §  155. 

Belleisle,  Marshall,  case  of,  §  93. 

Bentham,  J.,  §§  9,  206. 

Berlin  decree,  §  189. 

Bernard  (Montague),  on  the  rules  of  war,  §  127,  et  seq.,  passim. 

Black  Sea,  the,  free  to  commerce  only,  §  57 ;  history  of  negotiations  concerning,  ibid. 

Blackstone  cited,  §  29  ;  Stewart's  note  on,  §  141. 

Blockade,  §§  186-189  ;  what?  §  186 ;  what  places  are  subject  to,  ibid. ;  why  a 
breach  of  unlawful,  ibid. ;  what  is  a  valid,  ibid. ;  blockading  force  often  settled 
by  conventional  law,  ibid. ;  paper  or  cabinet  blockades  unlawful,  ibid, ;  evidence 
of,  §  187  ;  what  is  due  notice  of,  ibid. ;  treaty  stipulations  concerning,  ibid. ; 
must  be  made  known  to  neutral  governments,  ibid. ;  difference  of  practice  as  to 
notice,  ibid. ;  notice  to  vessels  from  a  distance,  ibid. ;  discontinuance  of,  ibid. ; 
penalty  for  breach  of,  §  188  ;  duration  of  liability  to  penalty,  ibid. ;  attempts  to 
stretch  blockade,  §  189  ;  history  of,  ibid. 

Brandschatz  (German),  §  133,  note. 

Bundesstaat  and  Staatenbund  (German),  §  104. 

Bynkershoek,  Cornelius  Van,  §§  54,  85,  86,  89,  91,  92  a,  92  6,  92  dt  bis,  92  e, 
93,  96,  107,  118,  127,  137,  140,  143,  note,  bis,  145,  146,  156,  176,  181,  183. 
App.L 

GBSAR'S  Gallic  war,  §  87. 
Calhoun,  J.  C.,  on  the  Monroe  doctrine,  §  47. 

Capacity,  personal,  determined  by  the  law  of  the  domicil,  §  70,  et  seq. 
Capture,  §  139,  et  seq. ;  of  private  property  still  allowed  on  the  sea,  ibid.     See 
Neutral  Trade,  Prize, 


INDEX.  425 

Capitulations,  §  146. 

Caroline,  case  of,  §  164,  note. 

Carrying  despatches  of  enemy,  highly  criminal  for  neutrals,  §  184. 

Ceremonial  of  the  sea,  §  85  ;  of  courts,  §§  84,  94. 

Challenges,  mediaeval,  §  115. 

Chevalier,  Michael,  §  11 8,  note. 

China  exempts  occidental  residents  from  its  jurisdiction,  §  65. 

Chivalry,  its  influence  on  international  law,  §  8. 

Christianity,  its  influence  on  international  law,  §§  7,  8. 

Cicero  de  officiis,  §  115. 

Coalition  against  France  (1793),  app.  ii. ;  (1798),  ibid. ;    (1804),  ibid. ;   (1818),  ibid. 

Cocceii,  H.  de,  §  181. 

Coke,  Sir  Edward,  his  institutes,'  §  8,  note ;  §§  89,  92  e. 

Comity,  §  24 ;  what  it  includes,  ibid. ;  the  foundation  of  private  international  law, 
§  69  ;  comity  or  courtesy,  §  82,  et  seq. 

Commercia  belli,  §  134.    ' 

Confederation,  treaties  of,  §  104  ;  of  the  Rhine,  app.  ii.,  1806. 

Conference  of  London  (1832),  app.  ii. 

Conflict  of  laws.     See  Private  International  Law. 

Congress  of  Cambray,  app.  ii.,  1718  ;  Rastadt,  ibid.,  1797,  under  peace  of  Campo 
Formio  ;  Vienna,  ibid.,  1814,  §§  58,  94,  155  ;  Aix-la-Chapelle,  §§  46,  94 ;  Trop- 
pau-Laybach,  §  46  ;  Yerona,  ibid. 

Conquest,  right  of,  considered,  §  21. 

Consolato  del  mare,  §  173,  app.  i. 

Consuls,  origin,  §  95  ;  functions,  §  96  ;  jurisdiction,  especially  outsido  of  Christen 
dom,  ibid. ;  privileges  and  status,  ibid. ;  are  often  natives  of  the  country  where 
they  live,  ibid. 

Contraband,  §§  178-183  ;  articles  forbidden  to  be  exported  by  Roman  law,  §  178  ; 
justice  of  the  rule  of  contraband,  ibid. ;  rule  of,  to  be  executed  by  belligerents, 
ibid. ;  ought  neutral  states  to  allow  such  a  trade,  ibid.,  note ;  fluctuating  views 
concerning,  §  179  ;  articles  generally  so  regarded,  ibid. ;  horses,  unwrought  metal, 
coined  money,  their  quality,  ibid. ;  naval  stores,  provisions,  ibid. ;  ships  ready- 
made,  ibid.,  note ;  lists  of  contraband  in  treaties,  ibid.  ;  nothing  contraband 
merely  by  the  dictum  of  a  belligerent,  §  180  ;  occasional  contraband,  ibid. ;  its 
justice,  §  181 ;  English  rule  concerning  provisions,  §  182.  (See  Preemption.) 
Penalty  for  contraband,  §  183  ;  treaty  modifying  penalty,  ibid. 

Contrabannum,  §  178. 

Contract,  right  of.     See  Treaty. 

Convention  of  Ackerman,  app.  ii.  (1826) ;  convention  of  1824  concerning  search, 
§  198  ;  amended  by  Senate  of  United  States,  ibid. ;  rejected  by  Great  Britain,  ibid. 

Convoy,  §  191 ;  history  of,  ibid. ;  justice  of  the  claim,  §  192  ;  neutrals  under  bel 
ligerent  convoy,  §  193. 

Copy  and  patent  right,  international,  §  80. 

Cotton,  Sir  Robert ;  his  opinion  on  right  of  ambassadors,  §  92  e. 

Courtesy,  international,  §  82,  et  seq. 

Courts,  foreign ;  how  far  are  aliens  allowed  to  use  them,  §  70  ;  suits  against  aliens 
in,  ibid. 


426  INDEX. 

Creole,  case  of  the,  §  70. 

Crimean  war,  §  118  ;  treatment  of  Russian  fishermen  in,  §  170  ;  rules  of  England 

and  France  toward  neutral  trade  in,  §  175. 
Crimes  committed  abroad,  punished  at  home  by  some  nations,  §  78  ;  committed  by 

foreigners,  escaping,  §§  78,  79. 
Custom,  a  source  of  international  law,  §  28. 

DAMM,  sea  laws  of,  app.  i. 

Danish  Straits,  sound  dues  in,  history  of  the  claim  to,  §  57  ;  now  extinguished  by 
money  payments  of  other  states,  ibid. 

Danube,  free  for  navigation  after  Crimean  war,  §  58. 

Declaration  of  Pilnitz,  §  46,  app.  ii.,  1791. 

Declaration  of  war  necessary  in  Greece  and  Rome,  §  115  ;  in  middle  ages,  ibid. ; 
but  not  in  modern  times,  ibid. ;  why  ?  ibid. 

Decree  of  the  Reichsdeputation  (1803),  app.  ii. 

Demosthenes,  c.  Aristocrat,  on  restoring  exiles,  cited,  §  79,  note. 

Denmark,  concessions  to  Sweden,  app.  ii.,  1660  ;  its  gains  from  Sweden,  ibid.,  1721 ; 
gives  up  Norway,  ibid.,  1814,  §  88  ;  the  sound  dues  of,  §  57  ;  a  party  to  the  first 
armed  neutrality,  §  174 ;  to  the  second,  §  191 ;  dispute  with  the  United  States 
on  belligerent  convoy,  §  193  ;  difficulties  in  Holstein  and  Schleswig,  app.  ii.,  1851. 

Dionysius  of  Halicarnassus  on  secret  warfare,  cited,  §  127,  note. 

Discovery,  claim  from,  examined,  §  53. 

Dispensing  power  of  the  Pope.     See  Pope. 

Divisions  of  international  law  ;  Vattel's  faulty,  §  26  ;  Wheaton's,  ibid. ;  other  divis 
ions,  §  27. 

Divorce,  regulated  by  law  of  the  place,  §  74  ;  why  ?   ibid. 

Domicil,  what,  §  67  ;  can  be  changed,  ibid. ;  rules  for  determining  the,  ibid. ;  can 
there  be  more  than  one,  ibid. ;  law  of  domicil  controls  as  to  personal  capacity, 
§  70  ;  important  exceptions  to  this  principle,  ibid. ;  concurrence  of  court  of  domi 
cil  in  cases  of  contracts,  §  72  ;  as  affecting  nationality  in  war,  §  168. 

Ducange,  §  95. 

Dumont,  his  collections  of  treaties,  §  106 ;  app.  ii.,  passim. 

Dutch  Republic ;  its  independence  acknowledged,  cited,  app.  ii.,  1648 ;  its  most 
important  treaties,  app.  ii., passim;  loses  Negapatam,  1783;  Batavian  republic 
becomes  a  monarchy,  1806  ;  annexed  to  France,  1810  ;  a  kingdom  with  Belgium 
under  house  of  Orange,  1814;  loses  Cape  of  Good  Hope,  etc.,  1814;  separated 
from  Belgium,  §  49  ;  disputes  with  England  on  the  ceremonial  of  the  sea,  §  86. 

EDINBURGH  Review,  No.  15,  §  122. 

Embargo,  civil  and  hostile,  §  114  ;  hostile  hardly  differs  from  war,  ibid. 

Emigration,  right  of,  §  61. 

England  acquires  New  Netherlands,  etc.,  at  the  peace  of  Breda,  app.  ii.,  1667  ;  acqui 
sitions  by  peace  of  Utrecht  from  France  (1713) ;  acquires  Gibraltar  and  Minorca 
from  Spain  (1713) ;  adds  greatly  to  her  power  in  America  by  treaty  of  Paris 
(1763);  her  concessions  at  peace  of  Paris  and  Versailles  (1782,  1783);  gains 
Negapatam  from  Holland  (1783)  ;  how  affected  by  peace  of  Amiens,  (1802) ;  her 


INDEX.  427 

part  in  the  great  coalition  against  Napoleon  (1813) ;  her  gains  by  treaties  of 
1814,  1815;  guarantees  integrity  of  Turkey,  (1840,  1856);  claims  over  the  narrow 
seas  around  England,  §  56  ;  doctrine  of  inalienability  of  allegiance,  §§  66,  202 ; 
claims  of  respect  to  her  flag,  §  86, ;  disputes  with  Holland  on  that  account,  ibid. ; 
law  of,  to  protect  ambassadors,  92  e ;  reprisals  by,  in  the  middle  ages,  §  114  ;  civil 
wars  of  Cent.  XVII.,  usages  in,  §  128 ;  usages  of  war  in  modern  times,  §  129 ; 
decisions  of  courts  of,  as  to  ransom  contracts,  §  142  ;  doctrine  as  to  neutral  trade  in 
war,  §§  173,  174 ;  as  to  occasional  contraband,  §  181 ;  and  as  to  preemption, 
§  182  ;  as  to  trade  opened  in  war,  or  rule  of  1756,  §  185  ;  as  to  notice  of  block 
ade,  §  187  ;  as  to  blockade  of  extensive  coasts,  §  189  ;  orders  in  council,  ibid. ; 
doctrine  as  to  convoy,  §  191 ;  as  to  search  and  discussions  with  United  States, 
§§  196-200. 

Equality  of  sovereign  state  is  equality  of  rights,  §  51 ;  not  inconsistent  with  differ 
ences  of  court  rank,  ibid. ;  disputes,  especially  between  France  and  Spain  in  re 
gard  to  rank,  ibid. ;  present  rules  of  rank,  ibid. ;  distinctions  fading  out,  ibid. ; 
comp.  §  86. 

Etiquette.     See  Equality,  Ceremonial,  Comity. 

Exequatur,  §  96. 

Exterritoriality,  what,  §  64  ;  its  limits  and  application  to  foreign  sovereigns,  ibid. ; 
ships  of  war  and  armies,  ibid,  (see  below) ;  to  vessels  driven  into  foreign  harbors, 
ibid. ;  to  residents  from  Christian  states  in  oriental  countries,  §  65  ;  to  ambassa 
dors,  §  92  a,  et  seq. ;  its  broader  and  narrower  import,  ibid. ;  implies  immunity 
from  foreign  civil  and  criminal  jurisdiction,  ibid. ;  immunity  of  hotel  and  goods, 
§  92  b  ;  (but  hotel  of  ambassador  no  asylum  for  criminals,  ibid.) ;  a  certain  free 
dom  from  imposts,  etc.,  ibid. ;  liberty  of  worship,  §  92  c ;  immunity  of  family 
and  train,  §  92  d ;  but  no  supreme  power  over  his  suite,  ibid.,  e. 

Extradition,  §  79  ;  not  of  strict  obligation,  ibid. ;  political  exiles  not  delivered  up 
by  free  countries,  ibid. ;  arrangements  of  extradition  of  United  States  with  Eng 
land  and  France,  ibid. 

FEUDALISM,  its  influence  on  international  usage,  §  8. 

Fisheries  on  the  high  seas  free,  §  55 ;  questions  between  Great  Britain  and  the 
United  States  as  to,  ibid. 

Flassan,  Histoire  de  la  diplomatic  Frangaise,  §§  89,  100,  105,  app.  i. ;  Histoire  du 
Congres  de  Vienne,  app.  i. 

Fcelix  (Droit  international),  §§  66,  70-78,  passim  ;  §  96. 

Foreign  judgments.     Sea  Judgments. 

Foreigners.     See  Aliens. 

Forms  of  politeness  on  the  sea,  §  85. 

Forum  contractus,  rules  concerning,  §  72. 

Foster,  Sir  Michael,  on  rights  of  ambassadors,  §  92  e. 

France,  acquisitions  by  peace  of  Westphalia  (1648) ;  right  of  succession  in  Spain, 
renounced  by  treaty  of  Utrecht  (1713) ;  abandons  the  pretender  (1697,  1713) ; 
acquires  Corsica  (1768) ;  concession  of  England  to,  in  1783  ;  treaties  of  consular 
and  imperial  France,  (1795-1815) ;  Droit  d'aubaine  in,  §  63  ;  treatment  of  foreign 
commercial  vessels  by,  §  64  ;  naturalization  in,  §  66  ;  refuses  to  accede  to  Eng- 


428  INDEX. 

lish  sea  ceremonial,  §  86 ;  reprisals,  French  usage  and  law  of,  §  144,  end ;  usages  of 
war  in  the  invasions  of  Italy,  in  Cent.  XV.,  §  129 ;  practice  as  to  neutral  trade, 
§§  173,  174;  as  to  notice  of  blockade,  §  187;  stretched  the  rules  of  blockade 
under  Napoleon,  §  189  ;  ancient  ordinances  on  contraband,  §  183  ;  treaty  of,  con 
cerning  search,  §  197 ;  withdrew  its  consent  to  search,  ibid. 

Francis  I.,  of  France,  §  100;  app.  ii.  (1526). 

Franklin,  Benjamin,  §§  122,  183. 

Full  power  of  ambassadors,  §  107. 

GAIUS  (instit.),  his  definition  of  jus  gentium,  §  9. 

Garden  (comte  de),  Histoire  de  traites,  app.  L,  app.  ii.,  passim. 

Gentilis.     See  Albericus. 

German  empire,  provisions  of  peace  of  Westphalia  respecting,  app.  ii.  (1648). 

Ghent.     See  Treaty. 

Great  Britain.     See  England. 

Greece,  ancient  international  law  of,  §  8  ;  not  true  that  it  had  none,  ibid. ;  balance 

of  power  known  to,  §  44 ;  treatment  of  foreigners  in,  §  63 ;  Athenians  kill- Spartan 

ambassadors  to  Persia,  §  93  ;   reprisals  in  Greece,  §  114 ;   declaration  of  war 

§  115 ;  usages  in  war,  §§  127,  128. 
Greece,  modern,  interference  on  behalf  of,  §  50. 
Grotius,  §§  11,  12,  20,  31,  55,  56,  59,  89,  92  a,  114,  127,  143,  145,  149,  155,  176, 

181,  188.     App.  i. 
Guaranty  and  treaties  of  guaranty,  §  105  ;  kind  of,  instances,  when  introduced,  ibid. ; 

what  they  imply,  ibid. 
Guardianship,  questions  growing  out  of,  by  what  law  decided,  §  74  b  ;  difference  of 

practice,  ibid. 
Gustavus  Adolphus,  §  51. 
Gyllenborg,  case  of,  §  92  e. 

HALE,  Sir  Matthew,  on  right  of  ambassadors,  §  92  e. 

Hamilton,  Alexander,  §  118. 

Hanseatic  league,  sea  laws  of,  app,  ii. 

Hartenstein,  his  explanation  of  jus  naturale,  as  used  by  Grotius,  §  11,  note. 

Hase  (E.  F.)  on  postliminy,  §  143. 

Hautefeuille  on  piracy,  §  137,  note;  on  contraband,  §  181 ;  on  despatches  carried 

by  neutrals,  §  184. 
Heffter,  Aug.  W.,  §§  6,  51,52,  59,  70,  92  <?,  96,  127,  130  note,  145,  149,   160, 

161,  181 ;  app.  i.,  app.  ii.  (1800). 
Holland.     See  Dutch  Republic. 
Hostages  to  confirm  treaties  in  use  as  late  as  1748,  §  106  ;  what  the  hostage  may 

do,  and  how  he  may  be  treated,  ibid. ;  given  to  confirm  ransom  contracts,  §  142 ; 

hostage  may  sue  in  his  own  courts,  if  the  ransom  contract  is  broken,  ibid. ;  case 

of  the  recapture  of  the,  ibid. 
Hiibner,  Martin,  §  176;  app.  i. 
Hulsemann,  Mr.,  §§  81,  83. 
Hurd,  John  C.,  law  of  freedom  and  bondage,  §§  2,  9. 


INDEX.  429 

Huss,  John,  safe  conduct  given  to  broken,  §  8. 

INDEPENDENCE  of  a  state,  what,  §  37. 

Intercourse,  is  there  a  right  of,  §§  25,  59  ;  what  a  state  may  not  do  as  it  respects 
intercourse,  §  59  ;  what  it  may  do,  §  60 ;  Christian  states  now  forcing  others  into 
intercourse,  ibid. ;  comp.  §  21  b. 

Interference  in  affairs  of  other  states,  unlawful,  §  42 ;  exceptions,  ibid. ;  for  the 
balance  of  power,  §  43  ;  to  prevent  revolutions  not  a  valid  ground  of  interference, 
§§  45,  46  ;  the  Monroe  doctrine  of,  §  47 ;  in  the  Belgic  revolution,  §  49 ;  inter 
ference  on  account  of  religion  and  humanity,  §  50. 

International  law  has  the  same  foundation  as  state  law,  §§  1,  2  ;  its  meaning  hi  an 
abstract  sense,  §  3 ;  in  a  more  limited  sense,  §  4  ;  actual  international  law,  what? 
§  5  ;  originated  in  Christian  states,  why  ?  §  7  ;  is  extending  beyond  Christendom, 
§  5  ;  not  observed  toward  savages,  ibid. ;  rules  of  intercourse  between  two  or  a 
few  states,  no  part  of  it,  ibid. ;  genesis  and  voluntariness  of,'  §  6 ;  of  later 
growth  than  state  law,  ibid. ;  in  Greece,  Rome,  and  mediaeval  Europe,  quite  im 
perfect,  §  8  ;  took  a  religious  form  among  the  ancients,  ibid. ;  positive  method  in, 
its  deficiencies,  §  13 ;  not  resolvable  into  contract,  §  14 ;  its  jura],  §  15  ;  and  moral 
grounds,  §  16 ;  rights  of  nations,  §§  17-21 ;  duties  and  claims,  §§  22-25  ;  divisions 
of  international  law,  §§  26,  27  ;  custom  and  free  consent,  sources  of,  §  28 ;  adopt 
ed  by  municipal  law,  §  29  ;  aids  for  knowing  what  it  is,  §  30  ;  progress  of,  §§  31, 
32  ;  uncertainty  and  want  of  authority  of,  §§  33,  203  ;  history  of,  its  importance, 
§  34 ;  method  in  this  work,  §  35  ;  international  law  regards  all  governments  as 
legitimate,  §  38  ;  knows  only  governments  de  facto,  §  40;  examples  of  recognitions 
of  new  states,  ibid. ;  forbids  assistance  to  revolted  provinces,  §  41 ;  allows  assist 
ance  to  a  state  against  rebellions,  ibid. ;  how  far  interference  is  allowed  by  inter 
national  law,  §§  42-50.  (See  Interference,  Balance  of  Power,  Monroe  Doctrine, 
Belgium,  Religion,  Congress.)  Property  what,  hi  international  law,  and  how  ac 
quired,  §§  52,  53 ;  territory,  what,  §  54 ;  international  law  as  to  coasts,  seas, 
gulfs,  bays,  and  rivers,  §§  55-58 ;  as  to  intercourse,  §  59,  et  seq. ;  international 
copy  and  patent  right,  §  80 ;  international  courtesy,  §§  82-85  ;  international 
law  as  to  ambassadors,  §§  87-94  ;  gives  no  full  protection  to  them  against  third 
powers,  §  93  ;  their  rank,  §  94 ;  as  to  consuls,  §  96  ;  international  right  of  con 
tract  or  treaties,  §§  97-109  ;  international  right  of  self-protection  and  redress,  or 
laws  and  usages  of  war,  §§  110-135  ;  international  rules  of  capture  and  occupa 
tion,  §§  139-145  ;  rules  as  to  treaties  of  peace,  §§  146-154  ;  as  to  neutrality  and 
neutral  rights,  §§  155-166  ;  as  to  liabilities  of  neutral  trade,  §§  167-201 ;  defects 
of,  §  203 ;  uncertainty  of,  ibid. ;  narrow  limits  of,  §  204  ;  treatment  of  nations  with 
out  its  pale,  ibid. ;  no  umpire  in  disputes  of  nations,  §  205  ;  international  peace 
projects,  §  206 ;  sanctions  of  international  law,  §  207 ;  progress  of,  §  208 ;  pros 
pects  of,  §  209  ;  importance  of  study  of,  §  210  ;  especially  in  the  United  States,  ibid. 
International  law,  private.  See  Private. 
Interpretation  of  treaties,  rules  of,  §  109  ;  case  of  repugnant  clauses  and  conflicting 

treaties,  ibid.,  end. 

Inviolability  of  ambassadors,  §  92  a.  1. ;   except  in  extreme  cases,  ibid. ;  this  right 
formerly  qualified  by  English  jurists,  §  92  e. 


430  INDEX. 

JAPAN  grants  exterritoriality  to  foreigners,  §  65,  end. 

Jews,  their  usages  in  war,  §  128. 

John,  King  of  France,  case  of,  §  100. 

Judgments,  foreign,  how  far  of  force  elsewhere,  §  77. 

Jus  gentium,  §  9  ;  inter  gentes,  ibid. ;  naturae  or  naturale,  §  10  ;  definition  of,  by 
Ulpian,  ibid. ;  by  Grotius,  §  11 ;  voluntarium,  as  defined  by  Grotius,  §  12  ;  trans- 
itus  or  passagii  innoxii,  §  59 ;  detractus,  §  61 ;  albinagii,  §  63 ;  legatorum  or 
legationum,  §  87;  quarteriorum,  §  92  6;  fetiale,  §  115;  postliminii,  §  143. 

KALTENBORN,  Carl  von,  §  158 ;  app.  i. 

Kent,  Chancellor,  §  29 ;  his  opinion  as  to  the  width  of  the  sea  line  of  the  United 

States,  §  56,  cited;  §§  92  e,  96,  99,  114,  122,  140,  165,  176,  177,  194. 
Kliiber,  Europaisches  Volkerrecht  (ed.  of  1851),  §§  2,  91,  92  a,  94,  102,  127, 176, 

181. 
Koszta,  Martin,  points  of  his  case  considered,  §  81. 

LANGUAGE  in  which  treaties  are  written,  §  150,  end. 

Laurent,  app.  i. 

Law,  international,  see  International  Law ;  political  and  public,  §  2 ;  sea  laws,  app.  i. 
of  war.  See  War. 

Lawrence,  St.,  free  to  the  United  States  by  the  reciprocity  treaty,  §  58. 

League  at  Schmalkalden,  app.  ii.  (1530). 

Legal  acts,  form  of :  rule  that  locus  regit  actum,  §  75. 

Legates  a  and  de  latere,  etc.,  94 ;  esp.  note. 

Legitimacy  :  all  forms  of  states  legitimate  hi  international  law,  §  40. 

Leslie,  Bishop  of  Ross,  his  case,  §§  91,  92  e. 

Lex  domicilii,  its  effect,  §  70 ;  loci,  or  loci  rei  sitse,  or  rei  sitae,  controls,  according 
to  Savigny,  in  all  cases  of  property,  §  71 ;  according  to  Angh'can  and  French  law, 
controls  only  as  to  movable  property,  ibid. ;  reason  for  Savigny's  opinion,  ibid. ; 
lex  domicilii  ought  generally  to  decide  as  to  inheritance  and  right  of  succession, 
§  73  ;  counter  opinions,  ibid. ;  its  bearing  on  questions  growing  out  of  marriage 
rights,  §  74. 

Liability  to  capture  of  goods  and  vessels  at  sea,  §  169  5,  et  seq. 

Licenses  to  trade,  §  147  ;  English  decisions  concerning,  ibid. 

Lieber,  Dr.,  §  17,  note  ;  §  124,  note. 

Lieger  ambassadors,  the  term  explained,  §  89,  note. 

Livy,  §§  128,  143,  note. 

Lubeck,  its  treatment  of  a  vessel  fleeing  into  its  waters,  §  168. 

Lucchesi-Palli,  on  blockade,  §  186. 

MABLY,  Abbe  de,  cited,  notes  to  §§  21,  105,  106. 

Mahon,  Lord,  cited,  p.  49. 

Malmesbury,  Earl  of,  on  search,  §  200. 

Manning,  W.  Oke,  his  commentaries,  app.  ii. ;  §§  118,  141,  161,  173,  and  frequently 

in  the  following  sections. 
Marcian,  the  emperor,  law  of,  §  178. 


INDEX. 

Marcy,  W.  L.,  on  Koszta's  case,  §  81 ;  on  the  declaration  of  Paris  in  1856,  §  122 ; 

on  neutral  rights,  §  176. 
Maritime  laws  of  mediaeval  Europe,  app.  ii. 
Marquardsen,  Prof,  hi  Erlangen,  on  the  Trent  case,  §  184  ;  app.  i. 
Marque,  letters  of,  §  121. 
Marriage :  seat  of  marriage  relations  the  husband's  domicil,  §  74 ;  hindrances  to, 

ibid. ;  formalities  of,  ibid. 
Martens  (Charles  de),  his  receuil,  app.  i.  ;  his  Precis  du  droit  des  gens,  app.  i. ; 

his  remarks  on  emigration,  §  61 ;  on  exterritoriality,  §  92  a,  cited;  §§  123,  150, 

176,  181,  188  ;  his  essay  on  armateurs,  §  181. 
Mendoza,  Spanish  ambassador,  case  of,  92  e. 
Middle  ages,  international  law  in,  §  8  ;  treatment  of  foreigners  in,  §  63 ;  usages  of 

war  in,  §§  128,  129. 
Milan  decree,  §  189. 

Mississippi,  negotiations  concerning  the  freedom  of  navigating,  §  58. 
Mohammedan  nations,  long  shut  out  of  Christian  international  law,  §  7 ;  alliances 

with,  disapproved  of  for  a  long  time,  §  8. 
Mohl,  R.  von,  §§  20  6,  78,  note,  app.  i.,  passim. 

Monroe  doctrine,  what,  §  47  ;  voted  against  by  Congress,  ibid. ;  Mr.  Adams'  expla 
nation  of,  ibid. ;  revived  by  Mr.  Polk,  ibid. ;  opposed  in  its  new  shape  by  Mr. 

Calhoun,  ibid. ;  is  no  part  of  the  American  system,  ibid. 
Moral  relations  of  states.     See  Duties. 
Moser,  J.  J.,  app.  i. 

NAPIER,  Sir  W.,  history  of  Peninsular  war,  §§  124,  129,  132. 

Napoleon  I.,  §§  118,  129,  131. 

Naturalization,  what,  §  66  ;  conflicts  of  laws  growing  out  of,  ibid. ;  inchoate,  its 
effect,  ibid.  See  Koszta. 

Navigation,  freedom  of,  §  55  ;  mare  liberum  of  Grotius,  and  m.  clausum  of  Selden, 
ibid. ;  Portuguese  and  Russian  claim,  ibid. ;  Danish  straits  now  free  for  navigation, 
§  57  ;  Black  Sea,  ibid. ;  river  navigation,  §  58  ;  act  of  Congress  of  Vienna  on 
river  navigation,  ibid. ;  the  Scheldt,  free,  ibid. ;  Danube,  ibid. ;  Mississippi,  ibid. ; 
St.  Lawrence,  ibid. ;  La  Plata,  ibid. 

Negro  slavery.     See  Slavery. 

Neutrality  and  neutrals,  §§  155-165  ;  doctrine  of  neutrality  chiefly  modern,  §  155  ; 
importance  of  questions  touching,  ibid. ;  neutrals,  who  ?  ibid. ;  gradations  of  neu 
trality,  ibid. ;  qualified  neutrality  differs  from  alliance,  ibid. ;  permanent,  ibid. ; 
armed,  ibid,  (see,  also,  Armed  Neutrality) ;  obligations  of  neutrals,  §  156  ;  must  be 
impartial,  ibid. ;  but  cannot  be,  if  they  help  both  parties,  §  157  ;  duty  of,  to  be 
humane  to  both  parties,  §  158  ;  especially  to  give  refuge  to  fugitives,  ibid. ;  ought 
to  disarm  fugitive  troops,  ibid. ;  treatment  of  vessels  fleeing  into  neutral  harbors, 
ibid. ;  case  of  the  Schleswig  vessel  hi  the  territory  of  Liibeck,  ibid. ;  may  admit 
vessels  of  war  of  the  belligerents  for  peaceful  purposes,  §  159 ;  may  open  their 
ports  to  prizes,  ibid. ;  but  are  not  bound  so  to  do,  ibid. ;  may  not  lend  money  or 
furnish  troops  to  either  belligerent,  nor  allow  hostile  acts  in  their  territories, 
§  160  ;  transit  of  troops  may  be  refused,  ibid. ;  practice  of  furnishing  by  neutrals, 


432  INDEX. 

formerly  allowed,  §  161 ;  especially  practised  by  Switzerland,  ibid. ;  can  the  same 
be  done  now  ?  ibid. ;  actions  allowable  for  the  citizen  or  subject  of  the  neutral 
state,  §  162  ;  loans  to  a  belligerent  unlawful,  ibid. ;  right  of  neutral  territory  to  be 
untouched  by  the  operations  of  war,  §  163  ;  right  and  duty  of  neutrals  when  their 
territory  is  so  violated,  ibid. ;  respect  due  to  neutrals,  to  their  flag,  subjects,  etc., 
by  belligerents,  §  164 ;  municipal  law  enforcing  neutrality,  especially  hi  the  United 
States,  §  165  ;  case  of  the  British  ambassador  in  1855,  §  165  ;  relation  of  neutrals 
to  the  parties  in  a  civil  war,  §  166  b. 

Neutral  trade,  or  neutral  ships  and  goods  on  the  sea,  §§  167-202 ;  importance  of 
questions  touching,  §  167  ;  who  are  neutral  persons  in  war?  §  168  ;  what  neutral 
property,  ibid. ;  liability  to  capture,  its  general  principles,  §  169  a;  two  rules  of 
liability,  from  nationality  of  goods,  and  of  vessels,  §  169  b ;  treatment  of  neutral 
vessels  conveying  hostile  goods,  §  170;  neutral  receives  freight  from  captor  for, 
ibid. ;  pays  freight  to  captor  of  hostile  vessel,  if  his  goods  are  delivered,  ibid. ; 
coast  fisheries  more  or  less  exempt  from  capture,  ibid. ;  justice  of  rules  as  to 
neutral  trade,  §  171 ;  earlier  practice  in  regard  to,  §  172 ;  consolato  del  mare, 
rules  of,  §  173 ;  practice  as  to  capture  in  the  17th  and  18th  centuries  shifting, 
§  174  ;  first  armed  neutrality,  ibid. ;  practice  of  England  and  France  in  the  late 
Kussian  war,  §  175,  note;  rules  of  peace  of  Paris,  in  1856,  §  175  ;  attitude  of 
United  States  respecting,  ibid. ;  opinions  respecting  capture,  §  176  ;  neutral  goods 
on  an  armed  enemy's  vessel,  §  177.  See,  also,  Contraband,  Blockade,  Search. 

North  American  Review  on  Monroe  doctrine,  §  47 ;  on  sound  dues  of  Denmark, 
§57. 

Norway,  §§  38,  104,  app.  ii.,  1814. 

Nymwegen,  or  Nimeguen,  peace  of  (1678),  §  92  c?,  app.  ii. 

OBLIGATION  or  contract,  questions  concerning,  by  what  courts  and  what  law,  de 
cided,  §  72. 

Obligation  of  states,  survive  changes  of  government,  §  38. 

Occupation  of  territory  by  a  conqueror,  effect  of,  §  145  ;  subsequent  reconquest, 
effect  of,  ibid. 

Oleron,  jugements  de,  app.  i. 

Ompteda,  Von,  app.  i. 

Orders  in  council,  British,  §  189. 

Ortolan,  Theod.  (diplomatic  de  la  mer),  §§  54,  85,  86,  159,  176,  181,  186,  app.  L 

Osenbriiggen  (de  jure  belli  et  pacis  Komanorum),  §§  8,  115,  app.  i. 

PALATINE  library,  §  131. 

Pardessus,  collection  des  lois  maritimes,  §§  95,  123,  note ;  §  173,  note. 
Paris,  treaty  of,  in  1856,  app.  ii.,  §  58 ;  declaration  attached  to,  §§  122,  175,  186. 
Partition  of  Poland.     See  Poland. 
Paschal  II.,  Pope,  case  of,  §  100. 
Passports.     See  Safe  Conducts. 
Paulus  (in  the  Digest),  §§  137,  143. 

Peace  of  Crespy,  app.  ii.,  1544;  Augsburg,  ibid.,  1555;  Westphalia,  ibid.,  1648; 
Liibeck,  1629  (see  Peace  of  Westphalia) ;  Prague,  1635  (see  the  same) ;  peace 


INDEX.  433 

of  the  Pyrenees,  app.  ii.,  1659 ;  Nymwegen,  ibid.,  1678-1679 ;  Ryswick,  ibid., 
1697;  Carlowitz,  ibid.,  1699  ;  Utrecht,  ibid.,  1713;  Rastadt-Baden,  ibid.,  1714; 
Passarowitz,  ibid.,  1718  ;  Nystadt,  ibid.,  1721 ;  Breslau-Berlin,  ibid.,  1742  ;  pre 
liminary  and  defin.  peace  of  Aix-la-Chapelle,  ibid.,  1748  ;  peace  of  Paris,  ibid., 
1763  ;  Hubertsburg,  ibid.,  1763  ;  Kutschuck-Kainardsche,  ibid.,  1774  ;  Teschen, 
ibid.,  1779  ;  Paris,  ibid.,  1782-1783  ;  Versailles,  ibid.,  1783  ;  Jassy,  ibid.,  1792; 
Basel,  between  Prussia  and  France,  ibid.,  1795  ;  Basel,  between  Spain  and  France, 
ibid.,  1795  ;  Paris,  between  Sardinia  and  France,  ibid.,  1796  ;  Tolentino,  ibid., 
1797  ;  Leoben-Campo  Formio,  ibid.,  1797  ;  Amiens,  ibid.,  1802  ;  Presburg,  ibid., 
1805  ;  Tilsit,  ibid.,  1807  ;  of  Sweden  with  Russia,  ibid.,  1809  ;  of  Schronbrunn 
or  Vienna,  ibid.,  1809  ;  Bucharest,  ibid.,  1812  ;  Paris,  first  peace  of,  ibid.,  1814  ; 
Vienna  (see  Congress  and  Treaties) ;  Paris,  second  peace  of,  ibid.,  1815  ;  peace  of 
Paris  after  Crimean  war,  ibid.,  1856,  §§  58,  122,  175  ;  Villa  Franca  Zurich,  ibid., 
1859.  See,  also,  Treaty,  Congress. 

Peace,  how  different  from  a  truce,  §  150 ;  not  always  perpetual,  ibid. ;  preliminary 
and  definitive,  ibid. ;  separate  and  secret  articles  of,  ibid.  ;  principals  and  acces 
sories  to,  ibid.  ;  language  generally  used  in  treaties  of,  ibid. ;  restrictions  on  the 
power  to  make  a,  §  151 ;  allies  ought  not  to  separate  their  interest  at  peace,  ibid. ; 
effect  of,  §  152  ;  on  private  rights,  ibid. ;  on  the  cause  of  undertaking  war,  §  153  ;; 
rule  of  uti  possidetis,  ibid.  ;  conditions  in  which  forts,  etc.,  must  be  ceded,  ibid. ; 
inhabitants  of  ceded  districts  not  to  be  indemnified,  ibid. ;  must  such  persons  be 
forced  by  the  ceding  party  to  submit  to  the  new  government,  ibid. ;  when  does 
peace  begin,  §  154  ;  its  effect  on  captures  made  after,  or  without  knowledge  of  it,, 
ibid. 

Phillimore,  §§  24,  37,  66,  118  note,  137,  162,  178  note,  184. 

Piedmont.     See  Sardinia. 

Pinheiro-Ferreira,  §  114. 

Pirates  and  piracy,  definition,  §  137;  nations  may  enlarge  the  definition,  but  net 
apply  it  then  to  international  law,  ibid. ;  jurisdiction  over,  ibid. ;  Barbary  powers 
not  pirates,  ibid.,  and  §  36  ;  pirates  form  no  state,  §  36  ;  slave-trading  not  piracy 
by  international  law,  §  138  ;  but  is  by  law  and  treaty  of  several  states,  ibid. ; 
efforts  to  make  it  so  by  international  law,  §  198  ;  vessel  suspected  of,  may  be  ap 
proached  and  its  character  ascertained,  §  195. 

Plata,  La,  free  for  navigation,  §  58. 

Pledges  to  confirm  treaties,  §  106. 

Poland,  first  partition  of,  app.  ii.  (1772) ;  second  and  third,  app.  ii.  (1793-1795). 

Political  refugees,  §  79,  end. 

Polk,  President,  §  47. 

Pope,  the,  his  relation  to  international  law  in  mediaeval  Europe,  §  8 ;  his  dispens 
ing  power,  ibid. ;  grants  of  to  Spain  and  Portugal,  §  53  ;  cessions  at  treaty  of  To 
lentino,  app.  ii.,  1797;  Papal  states  annexed  to  France,  app.  ii.  1809;  rank  in 
European  ceremonial,  §  51 ;  ambassadors,  §§91,  94,  note. 

Portalis,  Count,  on  the  usages  of  war,  §  130,  note. 

Portugal,  treaty  with  Great  Britain,  allowing  search  of  suspected  slavers,  §197; 
independence  of,  app.  ii.,  1668. 

Postliminy,  not  applied  to  recaptures  from  pirates,  §  137;  what,  by  Roman  law, 
28 


434:  INDEX. 

§  143  ;  wherein  modern  differs  from  Roman,  ibid. ;  must  be  extended  to  neutral, 
if  not  to  subjects,  ibid. ;  rule  of,  extended  to  reconquest,  §  145. 

Preemption,  a  compromise  between  belligerents  and  neutrals,  §  182  ;  English  prac 
tice  of,  ibid. ;  treaty  of  United  States  with  Great  Britain  concerning,  ibid. 

Prescription,  follows  the  lex  loci,  §  71. 

Prisoners,  present  treatment  of,  §  128,  end;  case  of  escaping  into  neutral  territory, 
§  143.  See,  also,  Rome,  War. 

Privateers,  §  121,  et  seq. ;  right  to  use  them,  clear,  ibid. ;  advantages  of,  ibid. ; 
evils  of,  §  122  ;  testimony  to  these  evils,  ibid. ;  endeavors  to  put  an  end  to  priva 
teering,  ibid. ;  restrictions  on,  §  123  ;  not  pirates,  if  exceeding  their  commission, 
§  137  ;  but  pirates,  if  taking  a  commission  from  two  hostile  powers,  ibid. 

Prizes  at  sea,  when  the  property  of  captors,  §  140  ;  title  given  by  a  court,  ibid. 

Prize  courts  of  several  countries,  §  141. 

Principalities,  Danubian.     See  Russia,  Turkey. 

Private  international  law,  writers  on,  app.  i.,  what  it  is,  §  69  ;  its  growth,  ibid. ;  leading 
features  of,  as  to  personal  capacity,  §  70  ;  property,  §  71 ;  obligation  or  contract, 
§  72  ;  succession,  §  73  ;  family  rights,  §  74 ;  forms  of  legal  acts,  §  75  ;  use  of 
foreign  courts,  §  76  ;  proofs,  etc.,  ibid. ;  foreign  judgments,  §  77. 

Property  of  states,  what,  §  52 ;  how  acquired,  §  53  ;  in  enemy's  country.  (See 
War.)  Of  neutrals.  (See  Neutrals,  Capture.)  Public,  how  treated  in  war,  §  131. 

Property,  private,  questions  concerning,  by  what  law  decided,  §  71 ;  rights  of,  be 
tween  husband  and  wife,  §  74. 

Proxenus,  in  Greece,  §  95. 

Prussia,  a  kingdom  (1713) ;  acquisitions  by  treaties  of  Berlin  and  Dresden  (1742) ; 
acquisitions  in  Poland  (1772,  1793);  losses  in  wars  with  France  (1795,  1807); 
gains  by  treaties  of  1814,  1815  ;  naturalization  in,  §  66 ;  treaty  with  United 
States,  §§  122,  183  ;  claims  of,  as  to  neutral  trade,  §  176. 

Puffendorf,  Samuel,  §§  12,  31,  149,  app.  i. 

QUINTUPLE  treaty,  §  197. 

RACHEL,  Samuel,  app.  i. 

Rank  of  states.     See  Equality,  Ambassadors. 

Ransom,  in  war,  §  128 ;  of  captured  vessels,  §  142 ;  its  conditions,  ibid. ;  not  favored 

by  English  law,  ibid.    (See  Hostage.)    Rights  of  ransomer  by  Roman  law,  §  143. 
Rayneval,  §  54,  app.  i. 
Recapture.     See  Postliminy. 
Recognition  of  a  new  state,  when  lawful,  §  40,  end. 
Reconquest,  §  145. 
Reddie,  J.,  g§  9,  171. 
Reichsdeputation,  report  of,  app.  ii.,  1803. 
Religion,  interference  on  account  of,  §  50. 
Remonstrances  of  states  against  the  conduct  of  others,  §  83. 
Reprisals,  §  114  ;   when  used,  ibid. ;   how  far  just,  ibid. ;   not  known  to  Romans, 

ibid. ;  practised  by  Greeks,  ibid. ;  and  in  mediaeval  Europe,  ibid. ;  general  and 

special,  ibid. ;  modern,  ibid.,  end. 
Reputation,  right  of,  §  18 ;  questions  concerning,  §  83. 


INDEX.  435 

Requisitions  or  contributions  in  war,  §§  129,  130. 

Restitution,  edict  of.     See  Peace  of  Westphalia,  app  ii.,  1648. 

Retaliation  in  war,  its  limits,  §  126. 

Retorsion,  §  114.  . 

Revolutions,  interference  to  prevent,  §  45  ;  history  of  such  interference,  §  46. 

Rewards  given  to  captors  by  English  law,  §  144.     See,  also,  Salvage. 

Rheinbund,  or  confederation  of  the  Rhine,  app.  ii.,  1806. 

Rhine,  the,  free  navigation  of,  §  58  ;  its  mouths,  ibid. 

Rights  and  obligations  of  states,  §  17  ;  of  reputation,  §  18 ;  of  redress,  §  19  ;  of 
punishment,  is  there  any,  §  20 ;  of  conquest,  §  21  ;  of  intercourse,  is  there  any, 
§§  25,  59 ;  of  asylum,  §  61 ;  of  innocent  passage,  ibid. ;  of  emigration,  ibid. 

Ringon  and  Fregoze,  French  ambassadors,  their  case,  §  93. 

Rivers,  freedom  of  navigation  of,  §  58 ;  rule  of  Vienna,  congress  concerning,  ibid. ; 
history  of,  ibid.  See  Danube,  Rhine,  etc. 

Rogatory  commissions,  §  76. 

Rome,  ancient,  international  law  of,  §  8  ;  treatment  of  foreigners  in,  §  63  ;  practised 
no  reprisals,  §  114;  fetial  jus  of,  §  115;  cruel  mode  of  warfare,  §  128  ;  toward 
non-combatants,  §  129  ;  in  sieges  and  sacks,  §  132  ;  its  jus  postliminii,  §  143 ;  its 
truce  with  the  Vejentes,  §  149,  note. 

Rule  of  1756,  §  185. 

Russia:  its  gains  by  peace  of  Nystadt  (1721);  by  partitions  of  Poland  (1772,  1793); 
guarantees  the  peace  of  Tcschen,  §  105  ;  relations  to  Turkey  and  the  Danubian 
principalities.  See  app.  ii.,  under  1774,  1792, 1807, 1810, 1812, 1826, 1829, 1833, 
1840,  1856 ;  party  to  the  armed  neutralities,  §§  174,  191 ;  its  part  in  the  holy 
alliance,  and  subsequent  policy,  §  46 ;  in  the  affairs  of  Greece,  app.  ii.,  1827, 
1832  ;  in  the  treaty  of  Paris,  app.  ii.,  1856  ;  its  law  of  naturalization,  §  66. 

Rymer's  foedera,  app.  i. 

SA,  case  of,  §  92  e. 

Safe  conduct,  or  safeguard,  §  147. 

Salvage,  §  144. 

Sanctions  of  international  law,  §  207. 

Sardinia,  kingdom  of:  comp.  for  Piedmont,  Savoy,  treaty  of  Cherasco,  app.  ii.  (1631), 
of  the  Pyrenees  (1659),  of  Vienna  (1689),  of  Rastadt  (1714) ;  island  of  Sicily  ex 
changed  for  Sardinia,  and  title  of  king  of  Sardinia  taken  (1718) ;  gains  from  the 
Milanese  (1735) ;  cessions  to  France  (1796) ;  Piedmont  annexed  to  France  (1802) ; 
restorations  by  Congress  of  Vienna  (1814) ;  treaty  of  Villa  Franca  and  Zurich 
(1859). 

Savigny,  F.  von,  explanation  of  Ulpian's  jus  naturale,  §  10 ;  his  system  of  private 
international  law,  §§  67-75,  passim. 

Scheldt,  the  free  navigation  of,  §  58. 

Schmalkalden,  recess  at,  app.  ii.,  1530;  league  of,  ibid.,  1531. 

Scott,  Sir  William,  §§  141,  180,  182,  183,  184. 

Sea,  the  high,  free,  §  55  ;  near  the  coast,  its  relation  to  territory,  §  54 ;  freedom  of, 
invaded  by  Portugal,  Great  Britain,  Russia,  §  55 ;  ceremonial  of,  §  85 ;  disputes 
concerning,  §  86. 


4:36  INDEX. 

Search,  right  of,  a  war-right  applied  to  merchant  ships,  §  190 ;  how  to  be  conducted, 
ibid. ;  duty  of  submitting  to,  ibid. ;  treaties  modifying,  ibid. ;  as  limited  by  convoy, 
§§  191-193.  (See  Convoy.)  To  execute  revenue  laws  in  peace,  §  194  ;  on  sus 
picion  of  piracy,  §  195  ;  for  slavers,  §  196  ;  conceded  by  several  treaties,  §  197  ; 
history  of  treaties  concerning,  §§  198,  199 ;  meaning  of  right  of  search,  §  200; 
claim  of  England  to  ascertain  nationality  of  vessels,  ibid. ;  of  United  States  for 
compensation  to  vessels  wrongfully  detained,  ibid. ;  new  discussions  in  1858,  ibid. ; 
nationality  of  vessels  a  good  ground  of  search  in  peace,  §  201 ;  new  convention 
of  United  States  and  Great  Britain  concerning,  §  201,  end ;  search  for  English 
seamen  on  neutral  vessels,  against  international  law,  §  202. 

Seizure  of  foreign  goods  on  promise  of  compensation,  §  182 ;  on  plea  of  necessity, 
ibid. 

Selden,  John,,  his  mare  clausum,  §  55. 

Senior,  N.  S.,  in  Edinburgh  Review,  §  3. 

Ships,  how  far  territory,  §  54 ;  merchant,  their  relations  to  French  law  in  French 
ports,  §  64  ;  neutral.  See  Neutral  Trade. 

Sieges,  license  of  soldiers  in,  §  132 ;  may  be  checked,  ibid. 

Slavery,  its  local  character,  §  70 ;  shaken  off  by  change  of  domicil,  ibid. ;  will  not 
revive  by  return  to  original  domicil,  ibid. ;  case  of  the  Creole,  ibid. ;  comp.  §  138. 

Slave  trade,  prohibitions  of,  §  138  ;  made  piracy  by  United  States  first,  ibid. ; 
by  Great  Britain,  ibid.  -r  by  treaty  of  Great  Britain  with  Brazil,  ibid. ;  but  not  by 
international  law,  ibid. ;  search  for  slave  traders.  See  Search,  Treaty  of  Wash 
ington. 

Sovereigns,  treatment  of,  on  foreign  soil,  §§  64,  84  ;  marks  of  respects  to,  §§  84,  85. 

Sovereignty,  what,  §  37  ;  sovereignty  of  a  state  differs  from  sovereignty  of  a  prince, 
§  38,  note ;  involves  independence  and  equality,  ibid. ;  qualified,  in  the  case  of 
confederate  and  protected  states,  ibid. 

Spain,  peace  of  Pyrenees,  app.  ii.  (1659) ;  recovers  Franche-Comte  (1668) ;  cessions  at 
peace  of  Nymwegen  (1678) ;  at  Ryswick  (1697) ;  partition  of  its  empire  pro 
posed  (1698,  1700) ;  title  of  Bourbons  to,  acknowledged  (1713) ;  concessions 
made  by,  to  the  quadruple  alliance  (1718);  concerned  in  peace  of  Vienna  (1735); 
cessions  at  peace  of  Paris  (1763) ;  party  to  peace  of  Versailles  (1783) ;  renunci 
ation  by  king  of  (1808) ;  Catalonia  taken  from  (1812) ;  refuses  to  sign  final  act  of 
Vienna  (1814) ;  interference  in  affairs  of,  §§  46,  47  ;  treaty  of,  with  Great  Britain, 
conceding  search  for  slavers,  §  197. 

Sponsio,  what,  and  whether  obligatory,  §  98. 

State,  a,  what,  §  36  ;  pirates  no  state,  ibid. ;  Barbary  powers  are  now  a  state,  ibid., 
§  137 ;  essential  functions  of,  §  37  ;  territory  of,  not  alienable  by  the  ruler,  §  52. 

Story,  Judge,  on  domicil,  §  67,  app.  i. 

Succession  to  property,  what  law  decides  in  cases  of,  §  73. 

Sully  (then  Marquis  de  Rosny),  case  of  his  servant,  §  92  d. 

Surety,  how  different  from  a  guaranty,  §  105. 

Sweden,  its  gains  by  peace  of  Westphalia  (1648) ;  losses  by  that  of  Nystadt  (1721) ; 
cessions  to  Russia  (1809)  ;  united  with  Norway  (1814). 

Switzerland,  its  independence  acknowledged  at  Westphalia  (1648) ;  arrangements 
of  Congress  of  Vienna  concerning,  §  155  ;  its  practice  of  furnishing  troops,  §  161. 


INDEX.  437 

TACITUS,  §  127. 

Talleyrand  on  the  rules  of  war,  §  130,  note. 

Territory,  what,  how  acquired,  §§  53,  54  ;  are  vessels  territory,  §  54 ;  mouths  of 
rivers,  bays,  neighboring  sea,  ibid. 

Testaments,  validity  of,  by  what  law  decided,  §  74  ;  comp.  Succession. 

Thirty  years'  war,  §  128  ;  treatment  of  non-combatants  in,  §  129  ;  mode  of  support 
ing  armies  in,  ibid. ;  fate  of  Magdeburg  and  Wurzburg  in,  §  132. 

Title  to  captures  at  sea,  how  and  when  acquired,  §§  140,  141. 

Trade  closed  in  peace,  but  open  in  war,  §  185. 

Treaty  or  contract,  right  of,  §  97  ;  with  whom  made,  ibid. ;  by  whom,  §  98  ;  in  a 
close  confederation,  only  by  the  central  power,  ibid. ;  made  by  a  limited  sovereign, 
how  far  binding,  §  99  ;.  extreme  case  of,  in  a  confederation,  ibid. ;  obtained  by 
fraud  or  force,  not  binding,  §  100;  cannot  bind  to  do  wrong,  §  101 ;  kinds  of, 
§  102  ;  treaties  of  alliance,  §  103  ;  defensive  alliance,  what,  ibid. ;  of  confedera 
tion,  §  104  ;  of  guaranty,  §  105.  (See  Guaranty.)  Confirmations  of  treaties  by 
religious  forms,  hostages,  pledges,  §  106.  (See,  also,  Hostages.)  Treaties  bind 
ing  when  agreed  upon,  §  107  ;  can  ratification  be  withheld  from,  after  giving  a 
full  power,  ibid. ;  violation  of  treaties,  §  108  ;  interpretation  of,  §  109  ;  language 
generally  used  in,  §  150  ;  treaties  of  peace.  See  Peace. 

Treaties,  particular.  (See,  also,  Peace,  Alliance,  Congress,  Convention.)  Treaty  of 
Madrid,  app.  ii.,  1526,  §  100  ;  Cambray,  app.  ii.,  1529  ;  Wittenburg  (capitulation 
of),  ibid.,  1547  ;  Passau,  ibid.,  1552  ;  Cherasco,  ibid.,  1631  ;  treaties  of  Osna, 
briick  and  Minister  (peace  of  Westphalia),  ibid.,  1648  ;  treaty  of  Ulm,  1620  (see 
Peace  of  Westphalia) ;  treaties  of  Oliva,  ibid.,  1660  ;  Breda,  ibid.,  1667  ;  Lisbon, 
ibid.,  1668;  partition  treaty,  first,  ibid.,  1698;  second,  ibid.,  1700;  the  three 
barrier  treaties,  ibid,  (under  peace  of  Utrecht) ;  preliminary  treaty  of  Vienna,  ibid., 
1635  ;  Naples,  ibid.,  1759  ;  family  compact,  ibid.,  1761  ;  treaty  de  Corsica,  ibid., 
1768  ;  treaties  partitioning  Poland  (see  Poland) ;  treaty  of  Luneville,  app.  ii.,  1802  ; 
St.  Ildefonso,  ibid.,  under  treaty  of  Luneville  ;  of  cession  of  Louisiana,  ibid.,  1803; 
Fontainebleau,  ibid.,  1807  ;  treaties  before  downfall  of  Napoleon,  app.  ii.,  before 
1814 ;  treaties  of  Vienna,  ibid.,  1815  ;  Ghent,  ibid.,  1814,  §§  55,  198  ;  treaties  of 
Paris,  1814,  1815.  (See  Peace.)  Treaty  of  London,  ibid.,  1827  ;  Tourkmantchai, 
ibid.,  1828  ;  treaty  of  separation  of  Belgium  and  Holland,  ibid.,  1831,  §§  49,  155  ; 
treaty  or  convention  of  Unkiar-Skelessi,  ibid.,  1833  ;  Washington,  ibid.,  1842, 
§§  79, 199,  200,  202  ;  Guadalupe-Hidalgo,  ibid.,  1848  ;  Paris,  after  Crimean  war. 
(See  Peace.)  Treaties  with  China,  ibid.,  1858;  treaty  of  Turin,  ibid.,  1860;  Dr. 
Franklin's  with  Prussia,  §§  122,  183. 

Trent,  the  case  of,  §  184. 

Truce,  §  148  ;  general  and  special,  ibid. ;  by  whom  made,  ibid. ;  time  of  beginning 
of,  §  149  ;  what  can  be  done  in  a,  ibid. ;  especially  in  the  case  of  besieged  places, 
ibid. 

Turkey,  is  coming  into  the  international  system  of  Europe,  §  5  ;  its  treaties  with 
Austria,  app.  ii.,  1699,  1718  ;  with  Russia,  ibid.,  1774,  1792,  1812,  1826,  1829, 
1833  ;  its  integrity  defended  and  guaranteed,  ibid.,  1856  ;  its  relation  to  the  prin 
cipalities  by  peace  of  1856,  ibid. 


4:38  INDEX. 

ULPIAN,  §§  10,  137,  note. 

Union  of  Utrecht  (1579),  app.  ii. 

United  States  of  America,  their  independence  acknowledged,  app.  ii.,  1783  ;  treaty 
of  Ghent,  ibid.,  1814,  §§  55, 198  ;  of  Washington,  ibid.,  1842,  §  199  ;  treaty  with 
Mexico,  in  1848,  ibid. ;  fishery,  question  of,  with  Great  Britain,  §  55  ;  claim  of,  over 
adjoining  sea,  §  56  ;  resist  Danish  sound  dues,  §  57  ;  naturalization  in,  §  66  ;  right 
of  negotiation,  to  whom  pertaining,  §  91 ;  decision  of  supreme  court  of,  as  to 
hostile  property  in  the  country,  §  118  ;  treaty  with  England  as  to  this,  ibid. ; 
attitude  as  to  privateering,  §  122  ;  as  to  neutrality,  §§  165,  166  ;  as  to  the  decla 
ration  of  Paris  in  1856,  §§  122,  175  ;  the  freedom  of  neutral  vessels,  §  176  ;  pre 
emption,  §  182  ;  law  of  blockade,  §  189  ;  belligerent  convoy,  §  193  ;  search, 
§  198,  et  seq. ;  law  of,  on  transshipment  of  goods,  §  194 ;  obligations  of,  by  treaty 
of  Ghent,  as  to  slave  trade,  §  198. 

VALENTINIAN  I.,  the  Emperor,  law  of,  §  178. 

Valin,  §  54. 

Vattel,  §  26,  59,  64,  67,  96,  98,  105,  114,  116,  118,  149,  152,  160,  181,  app.  i. 

Verge  on  de  Martens,  §§  118,  122,  note. 

Verona.     See  Congress. 

WACHTER,  Dr.  0.,  on  international  copyright,  §  80. 

War,  §  110,  et  seq. ;  a  just,  what,  §  111 ;  who  is  to  judge,  ibid. ;  nations  not  bound 
to  submit  to  arbitration,  ibid. ;  ally  may  judge  of  lawfulness  of,  ibid. ;  grounds 
of  a  just  war,  §  112  ;  kinds  of,  §  113  ;  measures  falling  short  of,  §  114  (see  Em 
bargo,  Retorsion,  Reprisals) ;  declaration  of,  §  115 ;  what  notice  ought  to  be  given 
of,  §  116  ;  effects  of  a  state  of,  §  117  ;  exists  between  states,  not  between  indi 
viduals,  ibid. ;  but  implies  non-intercourse  of  the  belligerents'  subjects,  ibid. ; 
license  to  trade  with  enemy,  ibid. ;  property  of  individuals  confiscable,  but  not 
now  confiscated,  §  118  ;  who  can  wage  war,  §  119  ;  different  rules  of,  on  land 
and  on  sea,  §  120  ;  sea  warfare  by  privateers,  §§  121-123  (see  Privateers) ;  rules 
of  war,  especially  on  land,  §  124,  et  seq. ;  their  vagueness,  ibid. ;  fundamental 
rules  of,  §  125 ;  retaliation  in,  §  126  ;  unlawful  ways  of  injuring  enemies  in, 
§  127  ;  .allowable  weapons,  ibid. ;  use  of  savages  in,  ibid. ;  breach  of  faith  not 
permitted,  ibid. ;  treatment  of  combatants  or  soldiers  in,  §  128 ;  of  prisoners, 
ibid. ;  of  irregular  troops,  ibid.,  end ;  of  non-combatants  and  their  property,  §§  129, 
130  ;  requisitions  still  allowed,  ibid. ;  treatment  of  public  property  hi,  §  131 ; 
usages  of,  in  sieges  and  storms,  §  132  ;  on  the  sea,  and  in  descents  on  the  coast, 
§  133  ;  commercia  belli,  §  134  ;  spies,  treatment  of,  §  135  ;  civil  wars,  §  136  ; 
wars  with  savages,  ibid. ;  with  states  not  under  our  international  law,  ibid. ;  with 
pirates,  §  137 ;  allies  in  war  ought  not  to  make  peace  separately,  §  151 ;  war 
ends  certain  treaties,  and  not  others,  §  152. 

Ward,  Robert,  history  of  the  law  of  nations,  app.  ii. ;  often  cited,  esp.  §§51, 8  9,  92 
d,  92  e,  100,  114,  115,  127. 

Warden,  D.  B.,  on  consuls,  §  96,  app.  i. 

Warnkonig,  Prof.  L.  A.,  app.  i.,  note  ;  §  63,  note. 

Washington,  treaty  of.     See  Treaty. 


INDEX.  439 

Webster,  Daniel,  on  ships  driven  into  foreign  harbors,  §  64,  end  ;  on  the  case  of  the 
Creole,  §  70  ;  on  the  complaints  of  Austria  against  the  United  States,  §  83 ;  on 
search  or  visitation  at  sea,  §  200. 

Wheaton,  Henry,  elements  and  history  of  international  law,  §§  26,  46,  49,  50,  58, 
76,  92  a,  92  d,  94,  103,  107, 118,  122, 144, 149,  152, 176,  185,  193,  200,  206,  208. 

Whewell,  W.,  §  17,  note. 

Wicquefort,  Abr.  de,  case  of,  §  92  a. 

Wildman,  Richard,  §§  12,  16,  140,  142,  147,  app.  i. 

Wolf,  Christian,  app.  i. 

ZOUCH,  Richard,  §  9,  app.  i 


THE   END. 


ADDITIONS   AND   CORRECTIONS. 

§47,  end  of  second  paragraph.  But  this  is  not  inconsistent  with  inde 
pendent  action  on  the  part  of  the  United  States  for  carrying  out  the  prin 
ciples  here  spoken  of. 

§  59,  near  the  end.  With  regard  to  the  navigation  of  the  Amazon  Mr. 
Charles  Sumner  informs  me  that  Brazil  is  ready  to  open  the  navigation  of 
this  river  to  all  riparian  countries  which  concede  the  same  privilege  to 
the  Brazilian  flag.  Conventions  for  this  purpose  have  been  made  with 
Venezuela  and  Peru,  limited  to  ten  years,  but  as  yet  there  is  no  convention 
with  Equador  or  Bolivia. 

§  89,  end.  Diplomatic  agents  are  now  allowed  to  reside  in  Japan. 
Comp.  treaty  of  the  United  States  with  Japan,  July  29,  1856,  in  Murhard- 
Samwer,  xviii.  1,  50.  For  resident  ambassadors,  now  allowed  by  the 
Chinese,  comp.  Append.  II.,  year  1856. 

§  92,  c.  A  reason  for  the  privilege  of  the  Eussian  ambassador  is  that 
the  emperor  of  Russia,  being  head  of  the  Greek  Church  in  that  country, 
does  not  recognize  the  authority  of  the  Patriarch  of  Constantinople. 

§  92,  e.  By  employing  merchants  as  foreign  ministers  is  intended  those 
merchants  whose  business  lies  in  the  country  where  they  are  ambassadors. 

§  114,  end.  Here  it  may  be  added  that  a  sufficient  time— say  four 
months,  as  in  several  treaties — before  reprisals  are  granted,  may  now  be 
considered  as  the  common  law  of  nations.  Phillimore  iii.  161,  quoting 
Valin. 

§  122,  end.  It  has  been  said  that  the  British  Government  would  have 
accepted  Mr.  Marcy's  proposition,  but  for  the  necessity  of  acting  in  concert 
with  the  other  powers,  but  that,  before  any  answer  was  received  from 
England,  President  Buchanan  withdrew  Mr.  Marcy's  offer,  unless  England 
would  abandon  the  right  of  blockade.  (?)  So  much,  at  least,  is  true,  that 
one  of  Buchanan's  earliest  acts,  after  coming  into  office,  was  to  direct  our 
ministers  abroad  not  to  press  the  Marcy  propositions. 

§  131,  second  paragraph.  What  is  here  said  of  the  requisition  on  Paris 
refers  to  Bliicher's  demands,  which  were  reduced  by  the  king  of  Prussia 
and  the  emperor  of  Russia.  Comp.  v.  Rochau,  "  Geschichte  Frankreichs, 
von  1814  bis  1852,"  i.  58.  At  the  same  time  the  allies  made  requisitions 
on  the  provinces  where  the  invading  armies  were  quartered  for  their  sup 
port.  After  a  little  time  an  arrangement  was  made  to  use  the  interven 
tion  of  certain  specified  French  authorities  in  feeding,  clothing,  equipping, 
and  paying  the  foreign  troops. 

§  140,  end.  It  may  be  added  that  in  the  war  of  1812  our  privateers, 
and  even  our  men-of-war,  burned  their  prizes,  and  sometimes  in  a  summary 
way.  In  this  they  conformed  to  English  practice  and  English  rule.  (Comp. 


ADDITIONS  AND   CORRECTIONS.  443. 

the  cases  of  the  Actseon  and  Felicity,  in  2  Dodson's  Admiralty  Reports.) 
The  French,  while  the  Berlin  and  Milan  Decrees  were  in  force,  burned  a 
number  of  neutral  American  cruisers,  having  merchandise  of  British  origin 
on  board,  while  our  cruisers  seem  to  have  destroyed  enemy's  vessels  only. 
The  same  practice  was  followed  by  our  cruisers  during  the  Revolutionary 
war,  and,  probably,  has  been  long,  more  or  less,  in  vogue. 

§  141,  beginning.  At  present,  and  by  statutes  6  and  7  Viet.,  c.  38,  all 
appeals  may  be  referred  to  the  judicial  committee  of  the  privy  council, 
which  is  now  the  great  court  of  appeal,  as  well  in  all  maritime  as  eccle 
siastical  matters.  Stewart's  Note  on  Blackstone,  iii.  70. 

§  159,  end.  The  English  Government  has  prohibited,  in  our  present 
war,  since  June  1,  1861,  the  bringing  of  prizes  by  vessels  of  war  and  priva 
teers  of  both  parties  into  the  waters  of  the  British  kingdom  and  its  colo 
nies.  France,  by  a  declaration  of  June  10,  1861,  made  the  same  prohibi 
tion,  excepting  that  such  vessels  with  prizes  are  allowed  to  remain  twenty- 
four  hours  in  her  ports,  and  to  remain  in  case  of  necessity  (reldche  forcee) 
as  long  as  the  necessity  lasts.  M.  Hautefeuille,  in  his  "  Quelques  questions 
du  droit  intern,  marit.,"  1861,  discusses  the  question  whether  these  pro 
hibitions  are  compatible  with  previous  treaties  with  the  United  States. 

§  180,  end  of  No.  1.  In  conformity  with  this  principle,  an  order  in 
council  of  Great  Britain,  dated  February  18,  1854,  prohibits  the  exporta 
tion  from  the  kingdom,  or  conveyance  coastwise,  of  the  parts  of  machinery 
used  in  steam  vessels.  See  Phillimore,  iii.  361,  who  adds  that  coal  under 
the  particular  circumstances  of  the  case,  regard  being  had  to  its  quality 
and  destination,  may  become  liable  to  seizure. 

§181,  last  paragraph.  It  may  be  added  that  the  French  National 
Convention  led  the  way,  in  seizing  neutral  ships  laden  with  provisions, 
and  bound  to  an  enemy's  port,  by  a  decree  of  May  9,  1793,  which  pro 
voked  a  retaliatory  measure  of  Great  Britain  in  June  of  the  same  year. 
Phillimore  iii.,  335.  The  decree,  which  may  be  found  in  Martens  rec.  v. 
382,  and  in  the  reprint  of  the  old  Moniteur,  vol.  xvi.,  351,  provides  that  the 
provisions  shall  be  paid  for  at  their  value,  in  the  port  to  which  they  were 
destined,  and  that  the  freight  stipulated  by  the  shipper  shall  be  allowed, 
together  with  compensation  for  detention,  as  fixed  by  a  prize  court. 

The  same  decree  contains  the  article  referred  to  in  §  174  (last  paragraph 
but  two),  relating  to  enemy's  goods  on  board  of  neutral  vessels. 

§  191,  second  paragraph.  For  a  more  correct  account  of  the  second 
armed  neutrality,  see  Appendix  ii.,  under  the  year  1800. 

For  a  number  of  corrections,  and  other  valuable  hints,  I  am  indebted 
to  the  kindness  of  Professor  Torrey,  of  Harvard  University. 


VC  06335 


THE  UNIVERSITY  OF  CALIFORNIA  LIBRARY 


